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Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page1of45 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



Assiniboine & Sioux Tribes of the Fort 
Peck Indian Reservation v. Norton, et ai. 

Standing Rock Sioux Tribe 
V. Norton, et ai. 

Three Affiliated Tribes of the Fort 
Berthold Reservation v. Norton, et al. , 

Shoshone-Bannock Tribes of the Fort 
Hall Reservation v. Norton, et ai, 

Chippewa Cree Tribe of the Rocky Boy's 
Reservation v. Norton, et ai, 

Yankton Sioux Tribe v. Norton, et ai, 

Osage Tribe of Indians of Oklahoma 
V. United States of America, et ai. 

Crow Creek Sioux Tribe 
V. Kempthorne, et al. , 

Omaha Tribe of Nebraska 
V. Kempthorne, etai, 

Oglala Sioux Tribe v. Kempthorne, et ai. 

The Confederated Tribes of the Colville 
Reservation v. Norton, et ai, 

Wyandot Nation of Kansas 
V. Kempthorne, etai. 

Rosebud Sioux Tribe v. Kempthorne, et ai, 

Winnebago Tribe of Nebraska 
V. Kempthorne, etai. 

Lower Brule Sioux Tribe 
V. Kempthorne, etai. 



Civil Action No. 02-0035 (JR) 

Civil Action No. 02-0040 (JR) 

Civil Action No. 02-0253 (JR) 

Civil Action No. 02-0254 (JR) 

Civil Action No. 02-0276 (JR) 

Civil Action No. 03-1603 (JR) 
Civil Action No. 04-0283 (JR) 

Civil Action No. 04-0900 (JR) 

Civil Action No. 04-0901 (JR) 

Civil Action No. 04-1 126 (JR) 
Civil Action No. 05-2471 (JR) 

Civil Action No. 05-2491 (JR) 

Civil Action No. 05-2492 (JR) 
Civil Action No. 05-2493 (JR) 

Civil Action No. 05-2495 (JR) 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 2 of 45 



Prairie Band of Potawatomi Nation 
V. Kempthorne, etal, 

Te-Moak Tribe of Western Shoshone 
Indians v. Norton, et al, 

Cheyenne River Sioux Tribe 
V. Kempthorne, etal, 

Stillaguamish Tribe of Indians 
V. Kempthorne, etal, 

Iowa Tribe of Kansas and Nebraska 
V. Kempthorne, et al. 

Confederated Tribes of the Goshute 
Reservation v. Kempthorne, et al, 

Muskogee (Creek) Nation of Oklahoma 
V. Kempthorne, etal. 

Eastern Shawnee Tribe of Oklahoma 
V. Kempthorne, et al. 

Northwestern Band of Shoshone 
V. Kempthorne, et al. , 

Red Cliff Band of Lake Superior Indians 
Indians v. Kempthorne, et al, 

Pechanga Band of Luiseno Mission Indians 
V. Kempthorne, et al, 

Colorado River Indian Tribes 
V. Kempthorne, et al. , 

Tohono O'Odham Nation 
V. Kempthorne, et al, 

Nez Perce Tribe, et al. , 
V. Kempthorne, etal, 

Passamaquoddy Tribe of Maine 



Civil Action No. 05-2496 (JR) 



Civil Action No. 05-2500 (JR) 



Civil Action No. 06-1897 (JR) 



Civil Action No. 06-1898 (JR) 



Civil Action No. 06-1899 (JR) 



Civil Action No. 06-1902 (JR) 



Civil Action No. 06-2161 (JR) 



Civil Action No. 06-2162 (JR) 



Civil Action No. 06-2163 (JR) 



Civil Action No. 06-2164 (JR) 



Civil Action No. 06-2206 (JR) 



Civil Action No. 06-2212 (JR) 



Civil Action No. 06-2236 (JR) 



Civil Action No. 06-2239 (JR) 



Civil Action No. 06-2240 (JR) 



-11- 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 3 of 45 



V. Kempthorne, et al. 

Salt River Pima-Maricopa Indian 
Community v. Kempthorne, et al, 

Coeur D'Alene Tribe v. Kempthorne, et al, 

Ak-Chin Indian Community 
V. Kempthorne, etal, 

Sokaogon Chippewa Community 
V. Kempthorne, etal, 

Gila River Indian Community 
V. Kempthorne, et al. 

Northern Cheyenne Tribe of Indians 
V. Kempthorne, et al. , 

Haudenosaunee: The Onondaga Nation 
V. Kempthorne, etal. 



Civil Action No. 06-2241 (JR) 

Civil Action No. 06-2242 (JR) 
Civil Action No. 06-2245 (JR) 

Civil Action No. 06-2247 (JR) 

Civil Action No. 06-2249 (JR) 

Civil Action No. 06-2250 (JR) 

Civil Action No. 06-2254 (JR) 



MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION FOR REMAND AND 

STAY OF LITIGATION 



-m- 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 4 of 45 

TABLE OF CONTENTS 

SUMMARY OF ARGUMENT 1 

STATEMENT OF FACTS 3 

I. Tribal Trust Accounts Overview 3 

A. Types of Tribal Trust Funds 4 

B. Interior Bureaus and Offices Responsible for Managing Current 

Tribal Trust Accounts and Providing Historical Accountings 5 

II. History and Evolution of Tribal Trust Accounting at Interior 5 

A. Historical Policies and Practices 5 

B. The Tribal Reconciliation Project and the American Indian Trust 

Reform Management Act 6 

C. Congressional Response to the TRP and Subsequent Litigation 11 

III. Current Accounting Work at Interior 12 

A. Accounting-Related Work of the Office of Historical Trust 

Accounting 13 

B. Trust Reform Regulatory Initiative 15 

IV. Issues and Considerations to be Addressed to Complete the Accountings Owed to 

the Tribes 16 

V. Relief Requested in Plaintiffs' Various Complaints 19 

ARGUMENT 21 

I. THE COURT SHOULD REMAND TO THE DEPARTMENT OF THE 

INTERIOR AND STAY THIS LITIGATION BASED ON APPLICATION OF 

THE PRIMARY JURISDICTION DOCTRINE 22 

A. Preparation of an Historical Accounting Plan Raises Issues of Fact 

Not Within the Conventional Experience of Courts 25 



-IV- 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 5 of 45 



B. Preparation of a Tribal Historical Accounting Plan Requires the 

Expertise of Interior 26 

C. Remand to Interior Appropriately Lessens the Potential for 

Inconsistent Outcomes 27 

11. THE COURT SHOULD REMAND TO THE DEPARTMENT OF THE 

INTERIOR AND STAY THIS LITIGATION BASED ON PRINCIPLES OF 
ADMINISTRATIVE LAW 28 

A. This Court Should Exercise Its Clear Authority to Remand to 

Interior 28 

1. Substantial and Legitimate Grounds Justify a Remand and 
Stay of This Litigation to Permit Interior to Prepare a 

Historical Accounting Plan for Tribal Trust Accounts 30 

2. Remand is Appropriate to Allow Interior to Consider and 
Incorporate Additional Evidence Related to Interior' s 

Accounting for Historical Periods 34 

3. Intervening Events Warrant Remand for 

Completion of an Accounting 35 

CONCLUSION 36 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 6 of 45 

TABLE OF AUTHORITIES 

FEDERAL CASES 

Allnet Communications Service Inc. v. National Exchange Carrier Ass 'n. , 

965 F.2d 1118 (D.C. Cir. 1992) 23, 27 

American Ass 'n of Cruise Passengers v. Cunard Line Ltd. , 

31 F.3d 1184 (D.C. Cir. 1994) 24 

American Indians Residing On Maricopa-Ak Chin Reservation v. U. S. , 

667 F.2d 980 (Ct. CI. 1981) 26 

Atchison, Topeka & Santa Fe. Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800 (1973) 27 

Brawner Building, Inc. v. Shehyn, 442 F.2d 847 (D.C. Cir. 1971) 23, 28 

Checkosky v. SEC, 23 F.3d 452 (D.C. Cir. 1994) 29 

Cobell V. Norton, 428 F.3d 1070 (D.C. Cir 2005) 26-28, 30, 33 

Ethyl Corp. v. Browner, 989 F.2d 522 (D.C. Cir. 1993) 34 

Ford Motor Co. v. NLRB, 305 U.S. 364 (1939) 29 

Himmelman v. MCI Commc'n Corp., 104 F. Supp. 2d 1 (D.D.C. 2000) 23, 24 

Lujan V. National Wildlife Federation, 497 U.S. 871 (1990) 34 

Red Lake Band of Chippewa Indians v. Barlow, 846 F.2d 474 (8th Cir. 1988) 22 

Reiter v. Cooper, 507 U.S. 258 (1993) 23 

Ricci V. Chicago Mercantile Exch., 409 U.S. 289 (1973) 24 

Rohr Indus. Inc. v. Washington Metro. Area Transit Auth. , 

720 F.2d 1319 (D.C. Cir. 1983) 25 

SBC Communications Inc. v. F.C.C, 138 F.3d 410 (D.C. Cir. 1998) 32 

SKF USA INC. V. United States, 254 F.3d 1022 (Fed. Cir. 2001) 29, 30, 35 

Total Telecommunications Services, Inc. v. AT & T, 

919 F. Supp. 472 (D.D.C. 1996) 23, 24 

-vi- 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 7 of 45 

United States v. Western Pacific R.R., 352 U.S. 59 (1956) 23 

FEDERAL STATUTES 

25 U.S.C. § 1401 4 

25 U.S.C. § 162a 8 

25 U.S.C. § 4011(a) 26 

25 U.S.C. § 4043(b)(2)(A) 5 

25 U.S.C. § 4044 8, 9, 11, 31, 35 

25 U.S.C. §§ 155 & 161b 4 

25 U.S.C. §§ 161a 8 

25 U.S.C. §§ 162a(d) 30 

25 U.S.C. §§ 4041-43 5 

25 U.S.C. §§461 18 

5 U.S.C. § 704 34 

P.L. 103-412 8 

Pub. L. 100-202 7 

Pub. L. 100-446 7 

Pub. L. 100-71 7 

Pub. L. 101-121 7 

Pub. L. 101-512 7 

Pub. L. 102-154 7 

Pub. L. 102-381 7 

Pub. L. 103-138 7 

-vii- 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 8 of 45 

Pub. L. 103-332 7 

Pub. L. No. 107-153 11, 32, 36 

Pub. L. No. 109-158 12, 13, 32 



-viu- 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 9 of 45 

SUMMARY OF ARGUMENT 

Defendants respectfully submit this Memorandum in support of their Motion for a 
Remand and Stay of Litigation. In the thirty-seven tribal trust accounting cases pending before 
this Court, plaintiffs have asked this Court to order defendants to provide historical accountings 
of the tribes' trust funds and assets. To the extent that the central focus of all these cases will 
necessarily be on providing historical tribal trust accountings, defendants request remand in 
these cases to the Department of the Interior ("Interior"), so that Interior can prepare and issue a 
plan setting forth the accountings to be prepared for all tribes including the scope and supporting 
rationale. Defendant further requests that Interior be allowed six months from this Court's grant 
of remand to prepare and present the historical tribal accounting plan and that the cases be stayed 
while Interior prepares that plan. As set forth in the accompanying declaration of Ross O. 
Swimmer, the Special Trustee for American Indians, devising such a plan requires the 
consideration of a host of complicated factual, technical, fiscal, legal and policy factors, more 
properly addressed by Interior in the first instance. See Declaration of Ross O. Swimmer 
(hereinafter "Swimmer DecL") (August 10, 2007). Interior is committed to completing and 
issuing the historical tribal trust accounting plan during the remand period. Id. 

Defendants' remand request is rooted in the need to fully consider, among other things, 
(1) the application of the tribal accounting work-related expertise that the Office of Historical 
Trust Accounting ("OHTA") has developed since 2002; (2) the arguments that have been raised 
about the accounting duties and obligations owed to the tribes; and (3) the structure of the 
programmatic approach for resolving the tribal historical accountings. Defendants request a 
remand based on the application of the primary jurisdiction doctrine, which allows for remand to 

1 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 10 of 45 

an agency to apply its expertise to coordinate administrative and judicial decisionmaking, and 
avoid inconsistent results. As the agency to whom Congress has delegated authority for 
oversight and accounting of tribal trust accounts, Interior has developed certain substantial 
expertise in carrying out its responsibilities. A programmatic approach to tribal trust 
accountings, such as the one that Interior intends to set forth in its historical tribal trust 
accounting plan, will most certainly reduce the potential for conflicting or competing demands 
on Interior. 

Defendants further request a voluntary remand based on additional substantial and 
legitimate reasons; that is, to fully consider all factual, technical, fiscal, legal and policy 
concerns at issue as part of crafting a plan to address the requests for trust fund and non- 
monetary trust asset accountings made by tribes (including those in these thirty-seven cases). As 
explained below. Congress delegated responsibility for tribal trust accounting to Interior; 
Congress directed Interior to undertake work to resolve disputes with tribes over the previous 
accounting-related products provided to tribes; and a remand will allow Interior to apply its 
insights gained from its accounting-related work to date, as well as to consider lessons learned 
from intervening events. Moreover, as Interior has not yet set forth its programmatic historical 
trust accounting plan to guide all tribal trust accountings, the appropriate record for judicial 
review is presently incomplete. Remand to the agency will benefit this Court's review by 
allowing for a complete record. 

As also set forth in the supporting Declaration of Ross O. Swimmer, over the past several 
years. Interior has focused its efforts related to tribal accounting to addressing specific 
accounting issues raised by those tribes that had filed litigation prior to December 2006. See 



Case 1 :06-cv-01 897-JR Document 26 Filed 08/1 1/2007 Page 11 of 45 

Swimmer Decl. ^ 16. As most of those tribal plaintiffs expressed an interest in pursuing 
resolution of their accounting claims in Alternative Dispute Resolution ("ADR") or other direct 
negotiations, Interior at that time sought to resolve accounting disputes on a case-by-case and 
tribe-by-tribe basis, while it investigated and developed measures that might be more broadly 
acceptable to all tribes. This approach has resulted in Interior's collection and analysis of a large 
body of information and data applicable to tribal accounting issues. Given the present posture of 
the thirty- seven tribal trust cases before this Court, however, a different approach that addresses 
all of the tribes' accounting demands is required. Accordingly, defendants request a brief six 
month remand period to allow it to analyze and apply its existing body of accounting work, and 
to articulate its proposed programmatic approach to resolution of plaintiffs' requests for 
accountings. 

STATEMENT OF FACTS 
I. Tribal Trust Accounts Overview. 

The United States began holding money in trust for tribes in the early nineteenth century 
and currently holds money and lands in trust for American Indian Tribes as specified in federal 
treaties, statutes, regulations, and Executive Orders. See, e.g., Title 25 U.S.C. Chapter 4, 
Performance by United States of Obligations to Indians. The number of tribal trust fund 
accounts under Interior's management has grown over time as a result of events such as 
agreements between the federal government and tribes, and legislation. See Swimmer Decl. % 4. 
Interior currently maintains approximately 1,450 tribal trust fund accounts for over 300 
different tribal entities. Id. f 25. As of September 30, 2006, the United States held over $2.9 
billion on behalf of tribes. Id. 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 12 of 45 

A. Types of Tribal Trust Funds. 

The two most common kinds of tribal trust fund accounts are "proceeds of labor" 
accounts and judgment or award accounts. Id. \ 4. "Proceeds of labor" accounts relate to 
revenue generated from activities that tribes authorize to occur on tribal lands, such as oil and 
gas development, farming and grazing. See 25 U.S.C. §§ 155 & 161b. Judgment or award 
accounts consist of judgments or awards that tribes have received from federal courts and 
Congress for past use or alleged misuse of tribal assets.- See 25 U.S.C. § 1401. In addition, 
certain accounts for tribes were previously also maintained as Individual Indian Money (IIM) 
accounts. See Swimmer Decl. \ 4. These accounts, sometimes called voluntary deposit 
accounts or tribal IIM accounts, were established for a variety of purposes, e.g., revolving loan 
funds, tribal enterprises (such as timber mill operations), and income from tribes' undivided 
interests in allotted lands. Id. Key differences exist between tribal trust fund accounts and IIM 
accounts. For example, the tribal trust fund accounts are not pooled for investment purposes, as 
are the IIM accounts. Id. Also, tribal trust fund account disbursements are handled differently 
and normally require different types of authorization including but not limited to tribal council 
actions. Id. 



- In 1946, Congress established the Indian Claims Commission (ICC) to settle all tribal claims 
against the Government which existed prior to August 13, 1946. See Indian Claims Commission 
Act of 1946 § 12, 60 Stat. 1049. Tribes were given until August 13, 1951 to file claims before 
the Commission or they were deemed to have waived their historic claims. Id. Congress 
included claims against the United States for accountings as well as mismanagement of tribal 
trust funds within the jurisdiction of the ICC. Id. § 2. 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 13 of 45 

B. Interior Bureaus and Offices Responsible for Managing Current Tribal 
Trust Accounts and Providing Historical Accountings. 

In 1994, Congress created the Office of the Special Trustee for American Indians 
("OST") and charged the Special Trustee with the responsibility of ensuring that Interior 
properly reform its measures for discharging its trust fund management and associated duties. 
See 25 U.S.C. §§ 4041-43. In particular, Congress tasked the Special Trustee with overseeing a 
"fair and accurate accounting" of the trust accounts. See 25 U.S.C. § 4043(b)(2)(A). In 1996, 
the Secretary of the Interior transferred certain responsibilities for managing and administering 
Interior's trust funds from the Bureau of Indian Affairs (BIA) to OST, by Secretarial Order. See 
Swimmer Decl. f 10. In 2001, the Secretary established the OHTA and charged it with the 
responsibility of planning, organizing, directing and executing the historical accounting for IIM 
account holders. Id. In July 2002, the Secretary amended the Order to expand OHTA's 
responsibility to include tribal historical accountings. Id. f 15. As of June 25, 2007, OHTA 
performs historical accounting work under the direction of the Special Trustee. Id. 
II. History and Evolution of Tribal Trust Accounting at Interior. 

A. Historical Policies and Practices. 

Over the years. Interior has developed and implemented its own policies, regulations, 
specialized business systems and forms for handling funds and maintaining and reporting its 
records of account. See Swimmer Decl. % 5. Prior to 1951, each BIA Agency Office (typically 
located on Indian reservations) accounted for financial activity using handwritten ledgers and 
journals. Id. In the early 1950s, Interior installed a more centralized accounting system in BIA 
Area (regional) Offices. Id. All fund types - Individual Indian Money ("IIM") as well as tribal 
- were integrated into this system. Id. Beginning in 1965, BIA began further centralizing its 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 14 of 45 

accounting functions on a mainframe computer in Albuquerque, New Mexico. Id. The 

conversion to a computer system was completed in the late 1960s. Id. A new automated 

accounting system was developed and implemented in 1968 and modified in 1974. Id. The 

earliest date for which Interior now has electronic account and transaction data available is July 

1, 1972 (the "Tribal Electronic Ledger Era"). Id. Interior utilized this system, known as the 

Trust Funds Management System ("TFMS"), until OST converted to the Omnitrust system for 

tribal trust fund accounts in April 1995. Id. 

With regard to reporting account balances, historically Interior prepared and distributed 

to tribes periodic reports, which provided information on beginning and ending balances, along 

with receipts and disbursements. Id. \ 6. As another example of the historical reporting of trust 

fund information, specific information about tribal trust fund accounts was also reported until 

the early 1970s in Treasury's Combined Statement of Receipts, Expenditures and Balances of 

the United States Government (Combined Statement), a published report submitted annually to 

Congress. Id. 

B. The Tribal Reconciliation Project and the American Indian Trust Reform 
Management Act. 

In the late 1980s, Interior focused on improving its accounting for tribal trust funds 

following several critical reports and investigated the feasibility of transferring certain money 

management responsibilities for Indian trust funds to a private bank. See Indian Trust Funds; 

Consultation Process to Procure Collection, Accounting, Advisory Investment Services and 

Custodial Services, 52 Fed. Reg. 12,348-49 (April 15, 1987). In response to Indian Country's 

concerns about the transfer of trust fund management to third parties, in a supplemental 

appropriation for Interior in 1987, Congress prohibited Interior from transferring any funds to 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 15 of 45 

any third party management until "the funds held in trust for such tribe . . . have been audited 
and reconciled, and the tribe . . . has been provided with an accounting of such funds . . .." Act 
of July 11, 1987, Pub. L. 100-71, 101 Stat. 391, 416 (1987). Substantially identical provisions 
were contained in the appropriation acts for the next two fiscal years. See Act of December 22, 
1987, Pub. L. 100-202, 101 Stat. 1329-214, 1329-229 (1987); Act of September 27, 1988, Pub. 
L. 100-446, 102 Stat. 1774, 1794 (1988). 

By 1989, Congress was aware of some of the practical difficulties associated with 
conducting a wide-scale retrospective reconciliation of the trust fund accounts. Accordingly, 
the 1990 fiscal year appropriations legislation carried a modified version of the previous 
language which recognized the impracticability of reconciliation. See Act of October 23, 1989, 
Pub. L. 101-121, 103 Stat. 701, 714 (1989) (changing the language to prohibit any transfer until 
the funds have been "audited and reconciled to the earliest possible date, [and] the results of 
such reconciliation have been certified by an independent party as the most complete 
reconciliation of such funds possible"). - 

In May 1991, BIA hired an accounting firm Arthur Andersen LLP ("Andersen") to 
conduct agreed-upon procedures for the tribal trust accounts. That work is commonly known as 
the Tribal Reconciliation Project ("TRP"). See Swimmer Decl. f 7. Interior also consulted 
extensively with tribal groups, including what now is known as the Inter-Tribal Monitoring 
Association ("ITMA"), a national tribal consortium consisting of numerous federally- 



- Similar provisions were included in the appropriations bills for 1991-1995. See Act of Nov. 5, 
1990, Pub. L. 101-512, 104 Stat. 1915, 1929; Act of Nov. 13, 1991, Pub. L. 102-154, 105 Stat. 
990, 1004; Act of Oct. 5, 1992, Pub. L. 102-381, 106 Stat. 1374, 1389; Act of Nov. 11, 1993, 
Pub. L. 103-138, 107 Stat. 1379, 1391; and Act of Sept. 30, 1994, Pub. L. 103-332, 108 Stat. 
2499,2511. 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 16 of 45 

recognized tribes, concerning the procedures that Andersen would use. Id. 

In 1994, Congress enacted the American Indian Trust Fund Management Reform Act of 
1994, Pub .L. No. 103-412 (codified at 25 U.S.C. §§ 161a, 162a and 4001-4061) ("1994 Trust 
Fund Reform Act")). This law recognized the government's trust responsibility for Indian trust 
accounts, and identified some of Interior's trust duties in that regard. See, e.g., 25 U.S.C. § 
162a. Congress adopted yet another variation of the requirement contained in the prior years' 
appropriations bills that Interior reconcile tribal accounts. See 25 U.S.C. § 4044. Congress also 
directed Interior to conclude the TRP by a specific date. Id. Section 304 of the 1994 Trust 
Fund Reform Act required Interior to provide a report to Congress on the TRP, and added new 
requirements that the Secretary of the Interior consult with the Special Trustee on the TRP, 
reconcile tribal trust fund account balances as of September 30, 1995, and report to Congress by 
May 31, 1996. See 25 U.S.C. § 4044. 

In early 1996, Interior provided the results of the TRP reports to tribes. See Swimmer 
Decl. \ 8. The information provided to tribes as part of the TRP generally included: (1) 
transaction by transaction account statements (receipts, interest earnings, disbursements, 
balances, etc.) for tribal trust fund accounts for the period from July 1, 1972 (Fiscal Year 1973), 
to September 30, 1995 (Fiscal Year 1995); (2) a report describing the procedures performed for 
the FY 1973 to FY 1992 period and the results thereof; and (3) electronic images of source 
documents-' that supported certain FY 1973 to FY 1992 transactions. Id. \ 7. 



- Source documents are the various trust-fund related financial documents, including those 
related to non-investment receipt transactions (e.g., deposit ticket, schedule of collections, and 
journal voucher), investment transactions (e.g., accounts distribution sheet and Treasury market 
securities purchase form), and non-investment disbursement transactions (e.g., request for 
withdrawal and voucher and schedule of payment). See Swimmer Decl. at 1[ 7, n. 1 . 

8 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 17 of 45 

In transmitting each reconciliation report to a tribe, Interior, as required by 25 U.S.C. § 
4044 (2), also requested that the tribe complete and return an attestation form indicating 
whether it accepted or disputed the account balances, and explain any objections to the reported 
account balances. See Swimmer Decl. % 8; see also Declaration of Dawn M. Boswell 
(hereinafter "Boswell Decl.") at Attach. A (Recommendations of the Secretary of the Interior 
for Settlement of Disputed Tribal Trust Accounts (Nov. 13, 1997) at 9). Of the attestation 
responses received from the fifty-four tribes, who now have thirty-seven accounting cases 
pending before this Court, four of the Tribes accepted the accuracy of the balances provided to 
them: the Gila River Indian Community, the Oneida Nation-', the Northern Cheyenne and the 
Stillaguamish. The other responses received from the tribes represented in the thirty-seven 
cases before this Court were distributed as follows: seventeen tribes disputed the results and ten 
tribes requested more time for review. Id. Twenty-one tribes never responded.- Id. On May 
31, 1996, Interior provided a report on the TRP to Congress as required by the 1994 Trust Fund 
Reform Act. Id.; see also Boswell Decl. at Attach. B (Letters and Report from Bruce Babbitt, 
Secretary of the Interior to Hon. John McCain and Hon. Don Young (May 31, 1996)). 

During the TRP, Interior spent about $21 million for contract costs to locate supporting 
documentation, analyze historical trust transactions, and perform other reconciliation 



- The Oneida Nation is part of the Haudenosaunee Confederation. See Swimmer Decl. 1[ 8, n.2. 
There are five additional tribes under Haudenosaunee who sent separate responses Id. % 8, n.3. 

- Of note the Wyandot Nation of Kansas and the Mohawk Nations did not receive a TRP. The 
additional eleven named plaintiffs under the Nez Perce class action had their own responses. 
Passamaquoddy had two governing entities, of which only one responded. See Swimmer Decl. 
at<l[8, n.3. 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 18 of 45 

procedures to validate tribal account balances. See Boswell Decl. at Attach. A 
(Recommendations of the Secretary of Interior for Settlement of Disputed Tribal Trust Fund 
Accounts (Nov. 13, 1997) at 1). Following completion of the TRP, Interior attempted to resolve 
the disputed tribal account balances of which it had been made aware. See Swimmer Decl. \ 9. 
In part, this was done through consultations with tribes (including, but not limited to those with 
accounting cases pending before this court). Id. Interior also continued to work to reconcile 
even more of the non-investment transactions than had been completed within the 
Congressional deadline set for the completion of the TRP. Id. 

In accordance with the directive in the 1994 Trust Fund Reform Act to make efforts to 
resolve any disputed tribal account balances. Interior submitted a legislative proposal for 
resolving those disputes to Congress in December 1996. See Boswell Decl. at Attach. C 
(Letters from Bruce Babbitt, Secretary of the Interior, to Hon. John McCain and Hon. Don 
Young (Dec. 11, 1996), enclosing Proposed Legislative Options in Response to Tribal Trust 
Fund Reconciliation Project Results (1996)). After tribal consultations, which led to significant 
changes to the options set forth in Interior's December 1996 report. Interior again submitted its 
recommendations to Congress in November 1997. See Id. at Attach. A {Recommendations of 
the Secretary of Interior for Settlement of Disputed Tribal Trust Fund Accounts (Nov. 13, 1997) 
at 9). A key feature of the legislative proposal Interior submitted to Congress was mandatory 
mediation, i.e., a tribe-by-tribe. Government- to-Government settlement process which would 
take into account the specific circumstances and claims of each Tribe. Id. at 21-22. 
Importantly, Interior contemplated that "[a]s part of the negotiations, there would be an 
opportunity to obtain additional data or undertake additional analysis to the extent it would be 

10 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 19 of 45 

constructive in reaching a satisfactory resolution of claims." Id. In other words, Interior made 
clear to Congress in 1997 that further accounting efforts were possible and also expressed that it 
would pursue such accounting where appropriate in order to address the individual 
circumstances of each tribe. Id. Congress held at least one hearing on the legislative proposal, 
but took no further action on that legislation. 

C. Congressional Response to the TRP and Subsequent Litigation. 

It was not until 2002 that Congress passed additional legislation regarding the TRP. 
Aware that some tribes were filing suits to preserve their objections to the TRP,- Congress 
amended the 1994 Act to extend the date that tribes would be deemed to have received their 
TRP reports. See An Act to Encourage the Negotiated Settlement of Tribal Claims, Pub. L. No. 
107-153, 116 Stat. 79 (2002) (codified at 25 U.S.C. § 4404 note). This legislation essentially 
deferred the deadline for tribes to object to the TRP by extending the statute of limitations until 
December 31, 2005. Congress' expressly stated purpose in passing this legislation was to 
encourage settlement negotiations between tribes and the United States. Congress noted that 
the extension was to provide tribes with "the opportunity to postpone the filings of claims, or to 
facilitate the voluntary dismissal of claims, to encourage settlement negotiations with the 
United States." Pub. L. No. 107-153, § 1(b); see also Rep. No. 107-138. The extension also 
allowed for the creation of a process to settle trust fund accounting claims. See 148 Cong. Rec. 
H704-01 (Mar. 6, 2002) (statement of Rep. Hansen). In 2005, Congress extended, for an 
additional year, the date on which tribes would be deemed to have received their TRP reports by 



- There were 13 such cases pending before the Court of Federal Claims and this Court in April 
2002. 

11 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 20 of 45 

another amendment to the 1994 Act. See An Act to Amend Public Law 107-153 to Modify a 

Certain Date, Pub. L. No. 109-158.^' 

III. Current Accounting Work at Interior 

As stated above, the Secretary of the Interior transferred responsibility for trust funds 
management from BIA to OST in 1996. See supra. Since the transfer, OST has been 
performing what Interior thus terms the "current accounting" work for tribes. See Swimmer 
Decl. II 13. One important component of the current accounting work is the preparation and 
delivery of periodic statements of performance, which are required by the 1994 Trust Fund 
Reform Act to be sent quarterly to each tribe (although tribes may request more frequent 
statements, and the majority of tribes are receiving monthly statements). Id. Statements of 
performance include information on the types of receipts, income and disbursements, and 
financial investment holdings including earnings, gains and losses. Id. 

Since April 1995, Interior has utilized two widely used, commercial trust management 
systems to account for activity in tribal trust fund accounts, including financial asset holdings. 
Id. 1[1[ 12, 14. From 1995 to 1998, Interior used the Omnitrust system to report receipt, 
disbursement and investment activity and holdings to the tribes. Id. In 1999, OST converted 
tribal trust accounts into the Trust 3000 system, commonly referred to as the Trust Fund 
Accounting System (TFAS). Id. \ 14. TFAS allows Interior to provide periodic statements of 
performance. Id.; see also 25 C.F.R. § 115.803. Further, Interior's current reports to tribes also 



- The second extension provided in part: "Notwithstanding any other provision of law, for 
purposes of determining the date on which an Indian tribe received a reconciliation report for 
purposes of applying a statute of limitations, any such report provided to or received by an 
Indian tribe . . . shall be deemed to have been received by the Indian tribe on December 31, 
2000." 

12 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 21 of 45 

include detailed information about the investments held for each account. Id. \ 14. 

Another significant trust reform measure in the post- 1994 period relates to the 
consolidation and safeguarding of Indian records. To date, Interior has indexed and 
consolidated over 156,000 boxes of inactive Indian-related records, containing an estimated 392 
million pages, at the American Indian Records Repository ("AIRR") in Lenexa, Kansas.- Id. \ 
11. The AIRR is a national repository for American Indian records created in 2004 pursuant to 
a Memorandum of Understanding between Interior and the National Archives and Records 
Administration (NARA). Id. Well over half of these boxes contain records pertaining to trust 
funds and trust assets, while the remainder relate to other BIA programs (such as law 
enforcement, education and general administration). Id. A significant number of additional 
boxes of Indian-related records are retained at various other NARA Federal Record Centers and 
at National Archives such as that in Washington, D.C., as well as various Interior and Treasury 
offices across the country. Id. 

A. Accounting-Related Work of the Office of Historical Trust Accounting 
Between 2002-06, OHTA's tribal work focused largely on the specific issues and 
questions raised by those tribes that filed cases prior to December 2006. Id. \\6. Rather than 
proceed with active litigation, most of those tribes expressed a preference for working with 
Interior in the context of settlement negotiations (including ADR). Id. As part of this process, 
OHTA has provided briefings on the TRP to these and other tribes; examined the TRP 
Andersen work papers as well as related document collections; and prepared various accounting 



-Inactive records are those that are no longer required for the agency's day-to-day activities and 
that have met the applicable schedule for retirement. See Swimmer Decl. 1[ 1 1, n.4. 

13 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 22 of 45 

analyses and data compilations of trust account-related materials. Id. It also has performed 
work to (1) aggregate historical electronic transaction data in such a way that it can be 
compared to a control source {i.e., contemporaneous account statements produced for, or by, 
BIA and/or OST) and (2) test the data to ensure that aggregate fund balances roll forward 
appropriately across reporting periods and from one system to another. Id. The ultimate goal of 
this work is to compile transaction records and data from disparate historical systems into a 
single, uniform dataset that will facilitate analyses and tests of transaction data and account 
balances. Id. Further, in recognition of the fact that reconciling a single account transaction 
may well exceed the amount of many transactions at issue, OHTA has used statistical sampling 
methods to reach valid conclusions on the accuracy of land-based IIM accounts and to reduce 
costs and time of reaching those conclusions. Id. f 18. 

Since 2003, OHTA also has worked to develop a programmatic approach to tribal 
accounting issues for tribes, including tribes that had not filed cases prior to December 2006. 
M 11 17. As one important project, OHTA entered into a Cooperative Agreement with ITMA in 
2004. Id. ITMA is a national non-profit tribal consortium the membership of which is 
comprised of sixty-five Indian tribes. See PL's Unopposed Mot. To Extend Temporary Stay of 
Proceedings (August 7, 2007) at 2, \ 4, Coeur D'Alene Tribe v. Kempthorne, No. 06-02242 
(D.D.C.). ITMA's mission, among other things, includes providing a forum for tribal 
consultation on trust related issues. Id. at 2, 1 5. OHTA has provided financial support under 
the terms of the Cooperative Agreement that has enabled ITMA to hire accountants and other 
experts to help seven of its member tribes (who ITMA selected) to participate in this Project to 
better understand their TRP results and then work with OHTA to develop a methodology that 

14 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 23 of 45 

aims to produce information to resolve any still-disputed tribal account balances. See Swimmer 
Decl. f 17. To date, the Project has produced a draft methodology that proposes to test 
disbursements, evaluate investments and assess the completeness of tribal accounts. Id. 

B. Trust Reform Regulatory Initiative. 

Moreover, beginning in 2004, Interior also began to consult with tribes on the 
development of regulations intended to establish an administrative agency process for resolving 
trust account holder questions or concerns about their trust funds accountings. Id. % 19. Interior 
first described the concepts of this draft regulation in a September 2004 letter to the leaders of 
federally-recognized tribes. Id. Interior received written comments from only four tribes in 
response; all of which requested more specific information on this proposal. Id. On December 
27, 2005, and July 7, 2006, Interior shared copies of the preliminary draft of the regulatory 
language with the leaders of federally-recognized tribes as well as other organizations in Indian 
Country, again seeking comments and recommendations. Id. Interior also presented those 
preliminary drafts to - and sought comments from - tribes at three tribal consultation meetings: 
in Albuquerque, New Mexico, on February 14, 2006; in Portland, Oregon, on August 15, 2006; 
and in Albuquerque on August 17, 2006. Id. 



15 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 24 of 45 

IV. Issues and Considerations to be Addressed to Complete the Accountings Owed to 
the Tribes 

As stated above, if the Court grants Interior' s remand and litigation stay requests, Interior 

will prepare and present an accounting plan that addresses the plaintiffs' requests for accountings 

of their trust funds and non-monetary trust assets, and fully articulates the agency's factual and 

legal determinations of its various tribal accounting duties under law. Id. \ 22. In particular, 

while producing this accounting plan, among considering other issues and questions, as set forth 

in the Swimmer Decl. ^ 20-26, Interior will address and determine a slate of factors including, 

but not limited to, whether or how: 



• prior accountings, reconciliation, auditing and reporting efforts by Interior, other 

government agencies and private accountants may be relied upon in the present 
accounting effort, particularly in avoiding duplicative efforts by Interior; 



to conduct a formal cost benefit analysis of the value of any further work; 

to determine accurate cash balances in tribal accounts, such as by analyses and 
tests (including but not limited to those that use statistical sampling methods) of 
the accuracy and completeness of the postings to accounts; 

to determine the types, quantity and quality of documents necessary for the 
analyses and tests of the accuracy and completeness of the postings to accounts; 

to present accounting information to each tribe and determine the degree of detail 
to provide for each transaction; 

to include other accounts in the accounting, such as tribal IIM accounts and 
closed accounts; 

to establish a starting and ending date for the tribal accountings, which may vary 
by tribe or account; 

to conduct and incorporate into its accountings a review and accounting of non- 
monetary assets, such as real property and natural resources; 

to sequence its accountings - such as by tribe, account type, time period, sample 
basis, revenue source, or pilot scale and full scale testing; 



16 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 25 of 45 



• to solicit the input of tribes into accounting issues raised by tribes and the 
exceptions they have raised to accounting products provided to date; 

• to incorporate ADR, other negotiation processes, and exceptions to any general 
rules for tribal accountings into its plan and process for administratively 
completing accountings; 

• to allocate its budget among settlement efforts, litigation support, and formal 
tribal accountings, as well as between tribal and IIM work; 

• to promulgate a formal rule to cover some or all of these matters, including an 
administrative appeal process; 

• to address prior reports criticizing Interior's trust asset management and 
accounting; 

• other applicable law, such as the Indian Claims Commission Act, the Interior 
appropriations riders and acts and many aspects of Title 25 of the United States 
Code regarding trust asset management, affects the determination of what 
accounting is owed; 

• a tribe's response or failure to respond to the TRP affects its claim to any further 
accounting; and 

• to exercise its discretion as to other aspects of the accounting to the extent 
permitted by law. 

Additionally, in the tribal accounting plan. Interior will analyze and evaluate the 
similarities and differences between IIM accountings and those that have been and will be 
performed for tribal accounts. Id. 1[ 23. In conducting this analysis and evaluation. Interior will 
examine closely all of the relevant trust fund and non-monetary trust resource characteristics of 
the tribes. Id. Unlike the IIM account holders, the tribes with trust fund accounts were provided 
the results of the TRP which included, among other things, a statement of account balances as of 
a given date and an accompanying request to verify the accuracy of that stated balance. Id. 

In contrast to the IIM accountings, tribal accountings implicate the Government-to- 
Govemment relationship that exists between the federal government and each individual tribe. 

17 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 26 of 45 

Id. \ 24. The Indian Reorganization Act of 1934 (c. 576, 48 Stat. 984, codified as amended at 25 
U.S.C. §§ 461 et seq.) and other laws have given tribes a great deal of autonomy over the 
management of their trust assets. Id. Some tribes have existed continuously as sovereign 
entities since time immemorial, and have trust assets dating back to the nineteenth century; 
others have been federally-recognized only in recent decades. Id. Some tribes have considerable 
assets, others very few; some tribes have only a single trust account, consisting perhaps of a 
judgment fund, while others have multiple types of accounts, dating from different times and 
containing funds from different sources (such as timber or other natural resource revenues). Id. 
In addition, each tribe has a potentially different starting date for the historical accountings of 
each of its accounts, depending upon factors such as when that account was opened, the effect of 
the Indian Claims Commission Act, and whether any tribal rights to an accounting as to any 
specific tribal account have been extinguished through litigation. Id. 

As part of its tribal accounting plan. Interior will also review and address the tribes' non- 
monetary trust asset accounting claims. Id. \ 26. This review and determination requires 
Interior to consider and decide numerous factual issues. Id. For instance, some tribes have 
never had any land held in trust for them by the United States, while some tribes have land-based 
assets which are not now or, at various times, have not been under federal management and 
control but instead are or have been held and entirely managed by those tribes themselves. Id. 
Interior needs to determine the level of land-based or non-monetary asset accounting owed to 
those tribes in all of those situations. Id. Interior also needs to examine and determine the 
significance and impact, if any, of all of the already-existing accounting-related products that 
have been available to the tribes. Id. 



18 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 27 of 45 

In preparing its tribal accounting plan, Interior will consider and decide whether and how 
to apply the accounting expertise that it has developed in the tribal trust litigation since 2002, 
and the insights that it has gained in its consultations with tribes in Indian Country on the 
regulatory initiative since 2004, among other factors. Id.%2i. In doing so. Interior needs to 
provide due consideration to tribes' specifications of any defects they believe exist in any 
financial information Interior previously has provided to them (including, but not limited to, the 
TRP results, account statements and source documents). Id. 

Further, the determination of what additional work to perform in the production of an 
historical accounting for a particular tribe must be made after careful analysis of all the relevant 
characteristics of a tribe. Each tribal nation has unique features. As a result, the features of the 
historical accountings for tribes may differ from tribe to tribe, although the production of all 
tribal accountings will be guided by the tribal accounting plan Interior intends to produce on 
remand. 
V. Relief Requested in Plaintiffs' Various Complaints 

A significant number of tribes with tribal trust fund accounts have filed suits against 
Interior, Treasury, and/or the United States regarding their trust funds and trust assets. There are 
presently 102 tribal trust accounting and trust management lawsuits pending in the Federal 
District Court for the District of Columbia, the Court of Federal Claims, and various Federal 
District Courts in Oklahoma.- There are twenty-eight different judges presiding over the 102 



- Specifically, of the 102 cases, 56 cases are in the Court of Federal Claims, 37 are in the 
Federal District Court for the District of Columbia, and nine are in various Federal District 
Courts in Oklahoma. See, e.g., Exh. 1, Unopposed Motion for Extension of Time to File 
Remand Motion, Docket No. 23, Confederated Tribes of the Goshute Reservation v. 
Kempthome, (Civ. No. 06-cv-01902). 

19 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 28 of 45 

cases. Additionally, in two of the thirty-seven cases filed here in the District of Columbia, two 
groups of named tribes seek class action status to represent over 250 tribes. See Nez Perce 
Tribe, et al, v. Kempthome, (D.D.C. No. 06-CV-02239); Te-Moak Tribe of Western Shoshone 
Indians v. Kempthome, (D.D.C. No. 05-CV-02500). The thirty-seven cases pending before this 
Court involve fifty-four named tribal plaintiffs. See Swimmer Decl. at 1 8. 

In the thirty- seven cases pending before this Court, the tribes make essentially similar 
allegations regarding the trust accounting and trust duties and responsibilities owed by the 
defendants. Compare Compl. inAk-Chin Cmty. v. Kempthome (Civ. No. 06-cv-02245) \ 16, and 
Compl. in Confederated Tribes of the Goshute Reservation v. Kempthome (Civ. No. 06-cv- 
01902) \ 24, with Compl. of The Osage Tribe of Indians of Oklahoma v. Kempthome (Civ. No. 
04-CV-00283) ll 6-14; 19-21. While each of these tribal suits pleads diverse facts, each and 
every plaintiff requests this Court to declare that the tribe has not received "complete" 
accountings of its tribal trust accounts. See, e.g., Compl. inAk-Chin Cmty. v. Kempthome (Civ. 
No. 06-CV-02245) \ 37-38; Compl. in Confederated Tribes of the Goshute Reservation v. 
Kempthome (Civ. No. 06-cv-01902) \ 30; Compl. of The Osage Tribe of Indians of Oklahoma v. 
Kempthome (Civ. No. 04-cv-00283) \ 34. The tribes also are unanimous in asking this Court to 
define the required accounting and order Interior and/or the Treasury to provide a complete 
accounting. See, e.g., Compl. inAk-Chin Cmty. v. Kempthome (Civ. No. 06-cv-02245) \ 42; 
Compl. in Confederated Tribes of the Goshute Reservation v. Kempthome (Civ. No. 06-cv- 
01902) \ 34; Compl. of The Osage Tribe of Indians of Oklahoma v. Kempthome (Civ. No. 04-cv- 
00283) 1 38. 



20 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 29 of 45 

ARGUMENT 

As set forth below, this Court has authority to grant defendants' remand motion based on 
application of the primary jurisdiction doctrine, which allows an agency to resolve issues within 
the agency's expertise before they are adjudicated. Here, the presentation of an historical 
accounting plan setting forth the complicated factual, technical, fiscal and policy matters that 
must be decided to conduct an historical accounting of tribal trust accounts does not fall within 
the conventional experience of courts, requires application of Interior's expertise, and, in 
enabling Interior to craft an overarching programmatic approach, lessens the potential for 
inconsistent conflicting outcomes. 

Another similar though distinct basis upon which this Court can grant a remand is the 
Court's equitable authority. Good cause exists to hold these cases in abeyance while Interior 
prepares to present its plan detailing the scope of historical tribal accountings. As explained 
more fully below, applicable precedent fully supports granting an agency's request for a 
voluntary remand when the agency's reasons for seeking the remand are "substantial and 
legitimate," when the agency seeks a remand to reconsider a prior action or decision, or when 
intervening events prompt the agency to seek to revisit or reconsider a prior action or decision in 
light of those events. Under these factual circumstances, the appropriate course is for this Court 
to grant defendants' motion for a remand to Interior so that it may present its historical 
accounting plan for tribal trust accounts. 



21 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 30 of 45 

I. THE COURT SHOULD REMAND TO THE DEPARTMENT OF THE 

INTERIOR AND STAY THIS LITIGATION BASED ON APPLICATION 
OF THE PRIMARY JURISDICTION DOCTRINE. 

Under the primary jurisdiction doctrine, a Court can remand an issue to the expert agency 
to decide the matter in the first instance. Plaintiffs have requested that this Court order 
defendants to provide them with full and complete accountings for their tribal trust fund 
accounts. See supra. The first step in providing a full and complete accounting is the 
preparation of a historical accounting plan detailing how the accountings should take place. 
Defendants request a remand so that Interior can provide this Court and plaintiffs with just such 
a historical tribal accounting plan. As detailed throughout the Swimmer Declaration, in crafting 
a plan capable of guiding accountings for the unique situations of all tribal trust accounts. 
Interior must make numerous factual, technical, fiscal, legal and policy determinations. See 
generally Swimmer Decl. To the extent that the expertise required to make these determinations 
lies within the specialized abilities of the agency, providing Interior the opportunity to craft a 
systematic and programmatic approach, lessens the potential for inconsistent conflicting 
outcomes given that twenty-eight judges are handling these cases. The Court should remand to 
Interior and stay the litigation based on the primary jurisdiction doctrine. 

The primary jurisdiction doctrine is a "common law doctrine used to coordinate 
administrative and judicial decisionmaking." Red Lake Band of Chippewa Indians v. Barlow, 
846 F.2d 474, 476 (8th Cir. 1988) (case involving tribe's claims that Interior had not given 
suitable accounting of trust funds remanded to Interior on basis of primary jurisdiction doctrine). 
It "comes into play whenever enforcement of [a] claim requires the resolution of issues which, 
under a regulatory scheme, have been placed within the special competence of an administrative 



22 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 31 of 45 

body." United States v. Western Pacific R.R., 352 U.S. 59, 64 (1956) (Western Pacific); see also 
Reiter v. Cooper, 507 U.S. 258, 268 (1993) (recognizing that primary jurisdiction applies to 
claims "contain[ing] some issue within the special competence of an administrative agency"); 
Brawner Building, Inc. v. Shehyn, 442 F.2d 847, 856 (D.C. Cir. 1971) (same). 

Although no fixed formula exists for its application, "the question is whether the reasons 
for the existence of the [primary jurisdiction] doctrine are present and whether the purposes it 
serves will be aided by its application in the particular litigation." Western Pacific, 352 U.S. at 
64. "The primary jurisdiction doctrine is premised on a desire for uniform outcomes and on the 
inherent advantage in allowing an agency ... to apply its expert judgment to the issues in 
dispute." Total Telecommunications Services, Inc. v. AT & T, 919 F. Supp. 472, 478 (D.D.C. 
1996), afi^d, 99 F.3d 448 (D.C. Cir. 1996). Primary jurisdiction "is concerned with promoting 
proper relationships between the courts and administrative agencies charged with particular 
regulatory duties." Western Pacific, 352 U.S. at 63. The posture of a suit - such as these thirty- 
seven cases - as a declaratory judgment " strengthen [s] the case for primary jurisdiction" because 
federal declaratory judgments "are not to be used to preempt and prejudge issues that are 
committed for initial decision to an administrative body." Allnet Communications Service Inc. v. 
National Exchange Carrier Ass 'n., 965 F.2d 1118, 1121 (D.C. Cir. 1992) (quotation marks and 
internal citations omitted). 

Under the doctrine, a court should refer a matter to an administrative agency for 
resolution, "even if the matter is otherwise properly before the court, if it appears that the matter 
involves technical or policy considerations which are beyond the court's ordinary competence 
and within the agency's particular field of expertise." Himmelman v. MCI Commc'n Corp., 104 

23 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 32 of 45 

F. Supp. 2d 1, 3-5 (D.D.C. 2000) (quoting MCI Commc'n Corp. v. AT&T, 496 F.2d 214, 220 (3d 
Cir. 1974) (quotation marks and citation omitted)); see also Allnet Commc'n Service, Inc., 965 
F.2d at 1 120 ("Expertise, of course, is not merely technical but extends to the policy judgments 
needed to implement an agency's mandate."); American Ass'n of Cruise Passengers v. Cunard 
Line Ltd., 31 F.3d 1184, 1186 (D.C. Cir. 1994). Remand to an agency is appropriate where "a 
prior agency adjudication of [the dispute] will be a material aid in ultimately deciding [the 
issue]." Ricci v. Chicago Mercantile Exch., 409 U.S. 289, 305 (1973). 

The courts traditionally have considered four factors in determining whether to apply the 
primary jurisdiction doctrine whether: (1) the question at issue is within the conventional 
expertise of judges; (2) the question at issue lies particularly within the agency's discretion or 
requires the exercise of agency expertise; (3) there exists a substantial danger of inconsistent 
rulings; and (4) a prior application to the agency has been made. See Total Telecommunications, 
919 F. Supp. at 478 (citing AT&T v. MCI, 837 F. Supp. 13, 16 (D.D.C. 1993)). The fourth factor 
- whether a prior application to the agency has been made - is essentially inapplicable to the 
situation here because none of the tribes have alleged they requested an accounting from Interior 
prior to filing the instant suits (or, more importantly, that Interior denied them a previously 
requested accounting). Based on application of the three applicable factors, the Court should 
remand to Interior for preparation of a tribal historical accounting plan and stay this litigation 
during the pendency of the remand. 



24 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 33 of 45 

A. Preparation of an Historical Accounting Plan Raises Issues of Fact Not 
Within the Conventional Experience of Courts. 

As to the first of the four elements of primary jurisdiction, the doctrine emphasizes that 
the court should defer to the appropriate specialized agency in cases that raise "issues of fact not 
within the conventional experience of judges." Himmelman, 104 F. Supp. 2d at 4 (quoting Far 
East Conference v. United States, 342 U.S. 570, 574 (1952)). The issues of fact pertinent here 
arise largely from Interior's trusteeship of and responsibility to account for, funds held in trust by 
the United States for the benefit of an Indian tribe pursuant to federal law, and the 1994 Trust 
Fund Reform Act, in particular. For over a century. Interior has developed and implemented its 
own policies, regulations, specialized business systems and forms for handling funds and 
maintaining its records of account, under varied statutory and treaty -based mandates. See 
Swimmer Decl. \ 5 (generally discussing the historical and current systems for tribal trust fund 
accounting throughout the years). The many technical and intricate questions regarding the 
parsing and organization of Interior' s accounting records are not within the conventional 
experience of courts. Interior is in a better position to distill the facts and circumstances 
regarding trust funds management presented in these cases, such as ascertaining ownership of 
particular accounts and interpreting Interior's forms and records. See Swimmer Decl. \ 20-26 
(discussing other factors to be taken into account while setting forth a historical tribal accounting 
plan). 

The Court also should delay forging ahead in these cases when there is a strong 
likelihood that agency action may simplify a complex fact pattern. See Rohr Indus. Inc. v. 
Washington Metro. Area Transit Auth. , 720 F.2d 1319, 1325 (D.C. Cir. 1983). This proposition 
is well established even in the trust accounting context, where, for example, the Indian Claims 

25 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 34 of 45 

Commission adopted a procedure in adjudicating accounting claims filed by Tribes that 

obligated the government to compile an accounting after a Tribe's filing of a petition, but prior 

to judicial review. See Sioux Tribe v. United States, 12 Ind. CI. Comm. 541, 549-50 (1963) 

(Exh. 1); American Indians Residing On Maricopa-Ak Chin Reservation v. U. S., 667 F.2d 980, 

1002 n.62 (Ct. CI. 1981). Thus, the fact that preparation of a historical tribal accounting plan is 

outside the conventional experience of courts weighs in favor of applying the doctrine here. 

B. Preparation of a Tribal Historical Accounting Plan Requires the Expertise of 
Interior. 

The second factor - whether the question at issue lies particularly within the agency's 
discretion or requires the exercise of agency expertise - conclusively applies in these cases 
because the 1994 Trust Fund Reform Act plainly vests responsibility for providing an accounting 
for Indian tribes with Interior. See 25 U.S.C. § 401 1(a). It is settled that the Act's text "offers 
little help in defining the accounting's scope." Cobell v. Norton, 428 F.3d 1070, 1074 (D.C. Cir 
2005) ("Cobell XVII"). The accounting "require[s] subject-matter expertise and judgment about 
the allocation of scarce resources" that is best left to the discretion of administrators. Id. The 
same is true for setting forth the scope of the historical tribal trust accountings. Here, Interior is 
the actor with primary responsibility for "'work[ing] out compliance' with the broad statutory 
mandate." Id. at 1076 (citation omitted). Accordingly, Interior should determine and then set 
forth the scope of the historical tribal accountings within its historical tribal trust accounting 
plan. 

Interior is expressly charged under the 1994 Trust Fund Reform Act in particular with 
weighing a host of technical and policy considerations regarding the discharge of its trust 
accounting duties that call upon its expertise. For example. Interior can best determine the costs 

26 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 35 of 45 

and benefits of performing a wide range of accounting tasks for a host of individual tribes with 

many overlapping similarities as well as differences. See Swimmer Decl. 1[ 22 & 26; Cobell 

XVII, 428 F.3d at 1076 (noting that because neither the congressional record nor common law 

trust precepts establish a definitive balance between exactitude and cost, this Court owes 

substantial deference to the scope of an accounting as devised by Interior). For example in 

properly drawing upon its expertise, Interior intends to consider statistical sampling along with 

other methods for determining the accuracy and completeness of tribal trust fund accounts as a 

component of its historical tribal accounting plan. See Swimmer Decl. ^18; see also Cobell 

XVII, 428 F.3d at 1077-79 (holding that the use of "statistical sampling" by the Secretary in the 

context of an accounting for IIM accounts was an appropriate use of discretion by the agency). 

Thus, the fact that Interior has unique expertise provides definitive support for application of the 

doctrine. 

C. Remand to Interior Appropriately Lessens the Potential for Inconsistent 
Outcomes. 

The third factor also weighs in favor of a remand, because a substantial danger of 

inconsistent outcomes exist if the accounting issues are not remanded. This factor targets the 

possibility of this Court issuing a ruling on a matter requiring the weighing of competing policies 

before the agency charged with fulfilling a statutory mandate has itself completed its 

decisionmaking on the same matter. See Atchison, Topeka & Santa Fe. Ry. Co. v. Wichita Bd. of 

Trade, 412 U.S. 800, 821 (1973) ("A court should refrain from expressing a preliminary view on 

what national transportation policy permits, before the ICC expresses its view."); but cf. Allnet 

Communication Service, 965 F.2d at 1120 (concern relates to disparate courts resolving issues 

inconsistently). This sort of conflict between the role of the court and the agency has already 

27 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 36 of 45 

arisen in the related case of Cobell v. Kempthorne, where the Court of Appeals for the D.C. 

Circuit reversed this Court's entry of an injunction on the basis, inter alia, that it wrongfully 

"treated the character of the accounting as its domain . . . [and] erroneously displaced Interior as 

the actor with primary responsibility for 'work[ing] out compliance with the broad statutory 

mandate.'" Cobell XVII, 428 F.3d at 1076 (citations omitted). Likewise, "sound discretion may 

require that the judicial tribunal wait until there is initial consideration by an agency." Brawner 

Building, 442 F.2d at 855. Here, the plaintiffs would have the Court specify defendants' 

historical accounting and other obligations. But, assuming arguendo that such claims are 

properly before this Court, it would nevertheless be error for the Court to specify such duties 

before Interior has first articulated its view as to the proper scope of historical accountings for 

tribal trust funds and other assets, especially because the accountings may vary by tribe, account, 

or other significant attribute. Further, the accountings should be coordinated by Interior through 

one historical tribal accounting plan that considers and weighs the proper sequence of tasks 

necessary to perform accountings for the plaintiffs and other tribes, all within the limited budgets 

allocated by Congress for that singular task, and to avoid court orders or other litigation 

developments from placing inconsistent demands upon Interior. Application of the third factor 

also results in this Court remanding to Interior. 

II. THE COURT SHOULD REMAND TO THE DEPARTMENT OF THE INTERIOR 
AND STAY THIS LITIGATION BASED ON PRINCIPLES OF 
ADMINISTRATIVE LAW. 

A. This Court Should Exercise Its Clear Authority to Remand to Interior. 

Even outside the context of primary jurisdiction cases such as this one, this Court's 
authority to grant a remand to the agency is well established. As the Supreme Court has noted: 



28 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 37 of 45 

There is nothing ... in the principles governing judicial review of 
administrative action, which precludes the court from giving an 
administrative body an opportunity to meet objections to its order by 
correcting irregularities in procedure, or supplying deficiencies in its record, 
or making additional findings where these are necessary, or supplying 
findings validly made in the place of those attacked as invalid. The 
application for remand in this instance was not on frivolous grounds or for 
any purpose that might be considered dilatory or vexatious. 

Ford Motor Co. v. NLRB, 305 U.S. 364, 375 (1939). Moreover, when a reviewing court is 

unsure of an agency's reasoning, the proper course is to remand "to afford the agency an 

opportunity to set forth its view in a manner that would permit reasoned judicial review." 

Checkosky v. SEC, 23 F.3d 452, 462-63 (D.C. Cir. 1994) (separate opinion of Silberman, J.) 

("[RJeviewing courts will often and quite properly pause before exercising full judicial review 

and remand to the agency for a more complete explanation of a troubling aspect of the agency's 

decision."). 

The Court of Appeals for the Federal Circuit in SKF USA INC. v. United States has more 

recently identified a series of well-accepted grounds for granting a request for a voluntary 

remand: 

[T]he agency may seek a remand to reconsider its decision because of 
intervening events outside of the agency's control . . . [E]ven in the absence 
of intervening events, the agency may request a remand, without confessing 
error, to reconsider its previous position. Finally, ... the agency may 
request a remand because it believes that its original decision was incorrect 
on the merits and it wishes to change the result. 

SKF USA INC. V. United States, 254 F.3d 1022, 1028 (Fed. Cir. 2001) (citing Lawrence v. 

Chater, 516 U.S. 163 (1996)). Moreover, while a court may refuse to grant a remand if the 

agency's request is frivolous or in bad faith, see, e.g.. Ford Motor Co., 305 U.S. at 375, if the 

agency's concern is "substantial and legitimate, a remand is usually appropriate." SKF USA 



29 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 38 of 45 

INC., 254 F.3d at 1029. 

1. Substantial and Legitimate Grounds Justify a Remand and Stay of 

This Litigation to Permit Interior to Prepare a Historical Accounting 
Plan for Tribal Trust Accounts. 

Defendants seek a voluntary remand to Interior so that Interior can present a written plan 
detailing its policies and process for the completion of historical tribal accountings. See 
Swimmer Decl. ^ 20-26. Plaintiffs have brought claims requesting historical accountings of 
their tribal trust accounts and other assets. See supra. Interior proposes to provide plaintiffs 
with a major step towards historical tribal accountings, that is, a plan setting forth the scope of 
such historical tribal accountings. See Swimmer Decl. ^ 20-26. In formulating that plan. 
Interior recognizes that it must consider accounting-related products previously provided to the 
tribes throughout the years, including the TRP materials provided in 1996 pursuant to the 1994 
Trust Fund Reform Act. Id. \ 22. Further, Interior recognizes that it also must provide a full 
explanation of its decisions as to the scope of the historical accountings detailed in its 
forthcoming plan. Id. Interior has set forth its commitment to providing a plan to give historical 
accountings for tribal trust accounts. Id. Il 2 & 20. In these circumstances, it is in the best 
interests of all parties, the judicial process, and the Court to afford Interior the opportunity on 
remand to complete a plan to accomplish that historical accounting. 

As noted above, it is incontrovertible that Congress has delegated to Interior the 
responsibility to account for tribal trust accounts. See 25 U.S.C. §§ 162a(d), 4011 & 4044. As 
such. Interior is "the actor with primary responsibility for 'work[ing] out compliance with the 
broad statutory mandate'" of the 1994 Trust Fund Reform Act, see Cobell XVII, 428 F.3d at 
1076 (quoting Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 66 (2004)), and 



30 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 39 of 45 

Interior is the entity with the technical, factual, fiscal and policy knowledge needed to prepare 
and present an historical tribal trust accounting plan. Interior has set forth policies and intra- 
agency guidance, and has developed expert understanding of the various accounting systems 
used throughout the years for tribal trust accounts, as well as of the records they generated. 
Defendants seek a remand at this time so that Interior can apply the significant information and 
expertise that it has obtained as the result of its work over the past several years on the tribal and 
IIM accounting fronts. See Swimmer Decl. 1[ 21 (discussing Interior seeking a remand so it can 
apply the tribal accounting expertise it has developed as the result of its 2002-06 accounting- 
related work with the earliest tribal trust plaintiffs, the insights gained from its 2004-06 
consultations on the Regulatory Initiative and the other factors described in the declaration). The 
resolution of disputes with tribes over historic trust account balances and other accounting- 
related claims is a complex, multi-faceted endeavor and does not have easy solutions. See 
Swimmer Decl. 11 20-26 (discussing the various technical, policy, fiscal and legal decisions that 
must be made in setting forth a historical tribal trust accounting plan). This Court should permit 
Interior to explain how it intends to comply with its broad statutory mandate in its historical 
accounting plan for tribes. 

In addition, the 1994 Trust Fund Reform Act makes clear that Congress intended for 
Interior to have the opportunity to undertake additional accounting work in response to a tribe's 
objections to a TRP. See 25 U.S.C. § 4044(3) (specifying that the Secretary "will undertake to 
resolve the dispute" over the balance of the account holder's account as reconciled in the TRPs). 
With regard to the tribes in these cases. Interior has not yet had an opportunity to complete an 
administrative process as contemplated in the 1994 Trust Fund Reform Act to address the 

31 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 40 of 45 

seventeen tribal plaintiffs who disputed their account balances.— See Swimmer Decl. \ 8. Nor 
has Interior set forth an overarching historical tribal accounting plan to guide accountings for 
other time periods for all tribes. Interior intends to address how a tribe's response to the TRP 
may affect its claims to further accounting work as one part of its historical accounting plan. 
The requested remand will allow the agency to "undertake to resolve" those disputed account 
balances and any other criticisms or exceptions to its accounting-related work to date, by 
preparing an historical accounting plan for tribal accounts for these plaintiffs and all tribes. 

Congress has also expressed a strong preference for the negotiated settlement of tribal 
trust accounting disputes, as evidenced by legislation that for several years extended the statute 
of limitations applicable to TRP disputes, with the aim of encouraging Interior and tribes to 
negotiate settlements of those claims in lieu of litigation. See The Act to Encourage the 
Negotiated Settlement of Tribal Claims, Pub. L. No. 107-153, 116 Stat. 79 (2002), as amended 
Pub. L. No. No. 109-158, 119 Stat. 2954 (2005) (codified at 25 U.S.C. § 4044 note). In light of 
Congressional policy to encourage settlement. Interior thus initially organized its tribal historical 
accounting work to support settlement negotiations with tribes in a case-by-case basis. See 
Swimmer Decl. \ 16; see also SBC Communications Inc. v. F.C.C, 138 F.3d 410, 421 (D.C. Cir. 
1998) (stating that it is appropriate for an agency "to make policy choices in small steps, and 
only as a case obliges it to."). But, the increase in litigation demanding formal accountings, as of 
December 2006, is a development that warrants an opportunity for Interior to fully and publicly 
articulate its rationale as to the form and content of the historic accounting for tribes. 



— In addition, of the tribal plaintiffs here, twenty-one never responded to their Interior about 
their TRP balances, see Swimmer Decl. 1[ 8. Surely such circumstances weigh in favor of 
remand. 

32 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 41 of 45 

Importantly, as part of its programmatic approach to a historical tribal trust accounting, Interior 
intends to consider building in the flexibility to continue with ADR or negotiation processes. 
See Swimmer Decl. 1[ 22. 

Third, it would benefit this Court and the parties to have a full administrative record prior 
to any adjudication of plaintiffs' claims on the merits. The administrative record for historical 
tribal trust accountings for these plaintiffs has not yet been fully developed. Hence, the Court 
cannot fully assess the reasonableness of Interior's decisions on these accounting claims until 
and unless Interior has the opportunity to articulate the bases of its decisions. Particularly since 
the record would benefit from additional articulation and action by Interior, the Court should not 
supplant Interior's role as the agency with primary responsibility for tribal trust fund 
accountings. This is particularly true with regard to making judgments about the allocation of 
scarce resources in striking a balance between exactitude and cost in defining the scope of the 
accounting. Cobell XVII, 428 F.3d at 1076 (citing Heckler v. Cheney, 470 U.S. 821, 831-32 
(1985)). In short, it will save the parties and the Court time and expense if the Court remanded 
the action to Interior at this juncture so Interior may both apply its expertise and present a full 
record. 

Finally, plaintiffs will not be prejudiced by a remand of the record considering the early 
stage of litigation at which this motion is filed. Litigation of the cases has not advanced 
significantly; dispositive motions and the administrative record have not yet been filed, and the 
Court has not yet established a briefing schedule in any of these cases. In fact, some of these 
cases have been administratively stayed and are proceeding on a settlement track. The 
likelihood of any prejudice is further diminished by the fact that, even in those cases where 

33 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 42 of 45 

plaintiffs have proposed a case management order to the Court, those plaintiffs have proposed 

that the Court proceed in phases, with the first phase to result in a declaratory judgment from this 

Court specifying defendants' accounting obligations. See, e.g., Joint Report Pursuant to Fed. R. 

Civ. P. 26(f) and Local Civil Rule 16.3 (Dkt. No. 12) at pp. 9-10, \6-\l , Ak-Chin Indian 

Community v. Kempthome, (Civ. No. 06-cv-22245). The remand process presents a superior 

alternative as a remand will permit Interior first to offer an administrative interpretation of its 

accounting obligations. 

2. Remand is Appropriate to Allow Interior to Consider and 

Incorporate Additional Evidence Related to Interior's Accounting for 
Historical Periods. 

In Ethyl Corp., the court granted EPA's motion for voluntary remand of the 
administrative record to allow the agency to consider new evidence and to make a new decision. 
Ethyl Corp. v. Browner, 989 F.2d 522, 524 (D.C. Cir. 1993). That same rationale justifies a 
remand in these cases, to the extent Interior' s TRP reports (or other account statements) are 
considered to be final agency actions currently reviewable under the Administrative Procedure 
Act (APA).— Since furnishing the TRP reports and other account statements to tribes. Interior 
has continually updated its body of historical accounting knowledge. See Swimmer Decl. 1[ 16 
(explaining that in the settlement and ADR context. Interior has offered briefings to explain the 
TRP data and results; examined the TRP Andersen work papers, as well as related document 
collections; and prepared numerous accounting analyses and data compilations of trust account- 
related materials for those cases); see also id. 1% 19 & 21 (stating that Interior intends to consider 



— Under the general review provision of the APA, the agency action challenged by plaintiffs 
must be identified specifically and must be final agency action. See 5 U.S.C. § 704; Lujan v. 
National Wildlife Federation, 497 U.S. 871, 882 (1990). 

34 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 43 of 45 

the insights gained from its 2004-06 consultations on the Regulatory Initiative during remand). 

Moreover, in devising its historical tribal trust accounting plan, Interior will consider and decide 

whether and how to apply the accounting expertise that it has developed previously while 

negotiating with other tribal entities regarding trust claims. Id. \ 22. Remand is appropriate to 

allow Interior to evaluate the lessons learned as the result of its various accounting efforts 

implemented since 2003 while it assesses and defines the nature and extent of tribal accounting 

work necessary during remand. M H 18 & 21. 

3. Intervening Events Warrant Remand for Completion of an 

Accounting. 

The passage of new legislation or the issuance of a new legal decision that affects the 
validity of an agency action are examples of intervening events that will often require a remand 
to provide the agency the opportunity to revisit its actions in light of the new developments. See 
SKF USA INC., 254 F.3d at 1028. In this case, the establishment of trust fund accounting 
principles in the Cobell v. Kempthome litigation, based on the 1994 Trust Fund Reform Act (a 
statute that applies to accounting obligations for both tribal and IIM trust funds) is a significant 
intervening event that warrants remand to Interior. 

Congress' actions with respect to tribal trust fund accounting since 1996 provide another 
series of intervening events that warrant remand. As explained above. Congress in the 1994 
Trust Fund Reform Act recognized that the TRP reports might not be the final historical 
accounting product as it specified that Interior would propose means of resolving account 
balance disputes. See 25 U.S.C. § 4044(3) (requiring, as part of its report to Congress, a 
statement by Interior outlining what efforts Interior will undertake to resolve disputes with tribes 
over the TRPs). Congress, however, has never adopted any such legislation. Instead, Congress 

35 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 44 of 45 

over the years encouraged Interior to pursue negotiated settlements of such tribal trust 
accounting disputes, and even extended the statute of limitations as to the TRP disputes, with the 
explicit aim of encouraging Interior and tribes to negotiate settlements of those claims in lieu of 
litigation. The Act to Encourage the Negotiated Settlement of Tribal Claims, Pub. L. No. 107- 
153 (2002), read in the context of other legislative actions on tribal trust fund issues, 
demonstrates Congress' strong preference that Interior take the initiative in pursuing an 
administrative approach to resolving tribal trust fund accounting disputes. See An Act to 
Encourage the Negotiated Settlement of Tribal Claims, Pub. L. No. 107-153, 116 Stat. 79 
(codified at 25 U.S.C. § 4044 note). That legislation, the effects of which expired on Dec. 31, 
2006, constitutes a significant intervening event that provides further justification for the grant of 
the requested remand at this time. 

CONCLUSION 

For the foregoing reasons this Court should remand the issues in these cases to Interior 
and stay these cases until Interior has completed its final accountings. 

Respectfully submitted this 10* day of August 2007, 

RONALD J. TENPAS 

Acting Assistant Attorney General 

/s/ Jennifer L. Allaire 



JENNIFER L. ALLAIRE, NJ Bar #4419-2002 

United States Department of Justice 

Environment and Natural Resources Division 

Natural Resources Division 

P.O. Box 663 

Washington, D.C. 20044-0663 

Tel: (202) 305-0456 

Fax: (202) 353-2021 



ANTHONY P. HOANG 

36 



Case 1:06-cv-01897-JR Document 26 Filed 08/11/2007 Page 45 of 45 



JOHN H. MARTIN 
KEVIN J. LARSEN 
MAUREEN RUDOLPH 
MARTIN J. LALONDE 

United States Department of Justice 

Environment and Natural Resources Division 

Natural Resources Division 

P.O. Box 663 

Washington, D.C. 20044-0663 

Tel: (202) 305-0241 

Tel: (202) 305-0258 

Tel: (202) 305-0479 

Fax: (202) 353-2021 

Attorneys for Defendant 

OF COUNSEL: 

GLADYS COJOCARI 
PAUL B. SMYTH 
ELISABETH BRANDON 

Office of the Solicitor 

United States Department of the Interior 

Washington, D.C. 20240 

TERESA DAWSON 

Office of the Chief Counsel 
Financial Management Service 
United States Department of the Treasury 
Washington, D.C. 20227 



37 



Case 1 :06-cv-01 897-JR Document 26-2 Filed 08/1 1/2007 Page 1 of 1 1 



12 Ind. CI. Comm. 541 



541 



BEFORE THE INDIAN CIAIMS C0t24ISSI0H 



THE SIOUX TRIBE OF INDIANS OF THE CHEYENNE 
RIVER RESERVATION, SOUTH DAKOTA, 

THE SIOUX' TRIBE OF INDIANS OF THE CROW 
CREEK RESERVATION, SOUTH DAKOTA, 

THE SIOUX TRIBE OF INDIANS OF THE LOWER 
BRULE RESERVATION, SOUTH DAKOTA, 

THE SIOUX TRIBE OF INDIANS OF THE PINE 
RIDGE RESERVATION, SOUTH DAKOTA, 

THE SIOUX TRIBE OF INDIANS OF THE ROSEBUD 
RESERVATION, SOUTH DAKOTA, 

THE SIOUX TRIBE OF INDIANS OF THE ST/iKDING 
ROCK RESERVATION, NORTH DAKOTA AND SOUTH 
DAKOTA, 

Plaintiffs, 

V. 

THE UNITED STATES OF AMERICA, 

Defendant. 

Decided: August 29, 1963 

Appearances : 



Docket No. 114 
Docket No. 115 
Docket No. 116 
Docket No. H7 
Docket No. 118 
Docket No. 119 



William Howard Payne, Attorney of 
Record in Docket No, 114 

Marvin J. Sonosky, Attorney of 
Record in Dockets Nos. 115, 116, 
118 and 119 

Arthur Lazarus, Jr., Attorney of 
Record in Docket No. 117 

Attorneys for Plaintiffs, 

Maurice H. Coopenaan, with whom 
was Mr. Assistant Attorney General, 
Ranjsey Clark, 

Attorneys for Defendant. 



Exhibit 1 to Motion for Remand 



Case 1:06-cv-01897-JR Document 26-2 Filed 08/11/2007 Page 2 of 11 



12 Ind. Cl. Conm. 541 542 



OPINION OF THE COMMISSION 



PER CURIAM , These cases are before the Ccjnimission as a result of 
certain motions filed by defendant and petitioners. All of the cases 
are extensions of prior Court of Claims cases heard under a jurisdictional 
act passed in 1920. Under that act (41 Stat. 738) an accounting was 
had up to June 30, 1925. Upon the passage of the Indian Claims Commfssion 
Act (49 Stat. 1069) petitions were filed in the above cases wherein- it 
was alleged that the prior accounting had taken place and that as of the 
end of that accounting period there existed certain balances belonging to 
the respective petitioners. It was prayed that defendant be required to 
audit each and all of petitioners' funds beginning on July 1, 1925 and 
that such audit show the use and purpose for which petitioners' funds 
were used or expended from any and all funds then or theretofore in the 
hands of defendant. 

In accordance with the prayers of these various petitions the 
defendant caused its General Accounting Office to begin preparation of 
reports setting forth an accounting as requested in the petitions. Due 
to the extensive nature of the research made necessary by the course and 
age of the transactions between the defendant and the various tribes it 
was obvious that such an undertaking would extend over a period of several 
years. For instance, the original accounting under the jurisdictional 
act in the Sioux cases had taken some nine years to complete. Because of 
this the Commission entered orders in these cases allowing defendant sixty 
days from the date of receipt of the General Accounting Office report in 
which to answer these petitions. 



Exhibit 1 to Motion for Remand 



Case 1:06-cv-01897-JR Document 26-2 Filed 08/11/2007 Page 3 of 11 

12 Ind. CI. Coinm. 541 543 

The procedure employed by defendant in these cases under consideration 

had been to file the General Accounting Office report pertinent to each 

case along with a motion for a more definite statement or for summary 

judgment. The body of said motion reads as follows: 

Comes now the defendant, by its Assistant Attorney 
General, and pursuant to Rule 11(e) moves the Comxiiission 
for an order directing the plaintiffs to file within sixty 
days an amended petition making its claim more definite in 
the following respects : 

By specifying separately, with full particulars and 
details, the instances wherein plaintiffs claim that the ■ 
defendant is at fault and the particulars upon which the 
plaintiffs rely to sustain their present general allegation 
"that their various funds have been depleted by the defend- 
ant by improper and illegal disbursements made from said 
funds by defendant from time to time." (Petition, p. 6). 

In the alternative, the defendant moves for sianmary 
judgment against the plaintiffs and in support of its 
motion shows the Commission as follows; 

1. This action seeks to obtain an accounting, subse- 
quent to June 30, 1925, which will show the purposes for 
which the plaintiffs ' funds were used and expended by the 
defendant since that date. It asks judgment "in such 
amount as may be found by this Commission to have been 
illegally or improperly expended by the defendant from 
the plaintiffs' said funds." (Petition, p. 7). 

2. A prior General Accounting Office report covering 
the period to June 30, 1925 submitted in 1932, has been 
adjudicated by the Court of Claims and is not here quasw 
tioned or involved. (Sioux Tribe v. Dnltcd States , 105 
C.Cls. 658, 725). 

3. On May 22, 1961, the General Accounting Office sub- 
mitted a supplemental report covering the period from July 1, 
1925 to June 30, 1951, setting forth in detail all receipts 
and disbursements showing uses and purposes with respect to 
all funds and property of the plaintiffs under all treaties, 
agreements and acts of Congress. A copy of this report is 

in the possession of the plaintiffs. The original of this 
report is herewith tendered as Def. Ex. 1, and is made a 
part hereof by this reference. 



Exhibit 1 to Motion for Remand 



Case 1:06-cv-01897-JR Document 26-2 Filed 08/11/2007 Page 4 of 11 

12 Ind. Cl. Conm. 541 544 

Wherefore, having rendered its full accounting to 
June 30, 1951, the defendant prays that the Commission enter 
an order (1) requiring the plaintiffs to make their peti- 
tion more definite and certain by alleging specifically 
wherein the defendant has improperly or illegally spent 
or disbursed their funds; and (2) providing that, if the 
petition is not made definite within sixty days, the 
plaintiffs shall be deemed to have no objection to the 
accounting rendered by the defendant and to have abandoned 
the assertion of any claim herein, and that summary judg- 
ment of dismissal shall thereupon be entered against 'the 
plaintiffs in this action. 

Petitioner filed a response in opposition to this motion in which 
it is stated that the General Accounting Office report shows certain 
expenditures but that it, "* * * does not show that said expenditures 
were for the benefit of the Crow Creek Indians or were not made In 
order to satisfy obligations of the United States under treaties or 
agreements." Petitioner's response goes on to say that, "The burden 
of proof is upon defendant to demonstrate that its disbursements from 
petitioner's trust funds are legal and proper. Sioux Tribe v. United 
States , supra, at p. 802." In connection with this same principle 
petitioner cites also Seminole Nation v. United States , 316 U. S. 286 
(1941). and Menominee Tribe v. United States , 101 C.Cls. 10 (1944). 
In addition to the responses to defendant's motions filed by counsel In 
Docket Nos. 115, 116, 118 and 119, there were filed motions fpr further 
accounting facts alleging that the General Accounting Office report, 
"* * * does not show by what authority the Tribe's funds were expended, 
how and for what purposes expenditures were made, or that the ftinds were r 
ever expended." 

Petitioner in Docket No. 114 in its response to defendant's motion 
raises in different language the samie contention that the General Accounting 



Exhibit 1 to Motion for Remand 



Case 1:06-cv-01897-JR Document 26-2 Filed 08/11/2007 Page 5 of 11 

12 Ind. CI. Coram. 541 545 

Office report is not responsive and that the procedure used by defendant 
in these cases is an improper attempt on its part to shift the burden 
of proof from itself to the petitioners. 

Petitioner in Docket No. 117 has filed the same response in oppo- 
sition to defendant's motion as did petitioners in Docket Nos. 115, 116, 
118 and 119. 

These motioris were set for hearing on August 5, 1963, and were 
argued together by counsel for all parties in the above-entitled cases. 
The Commission also had the benefit of argument by counsel for other 
petitioners and defendant in related cases. The motion of defendant in 
each case is the same and the responses are sufficiently similar that 
disposition of one will control all. 

The question is the procedure to be followed in these accounting 
cases. A cursory examination indicates that the remaining accounting 
cases probably are of the same type and therefore capable of being adapted 
to the same procedure. With that thought in mind the Commission will set 
forth its determination as to the proper procedure and will follow it 
henceforth wherever applicable. 

As stated above the procedure used by defendant in these cases 
consists of the filing of a motion for a more definite statement or for 
summary judgment and making the General Accounting Office report a part 
thereof by reference. It is the position of defendant that the filing of 
the General Accounting Office report is all of the response required of 
it at this stage of the proceedings and will enable petitioners to point 
out specifically the instances, if any, wherein they contend that 



Exhibit 1 to Motion for Remand 



Case 1:06-cv-01897-JR Document 26-2 Filed 08/11/2007 Page 6 of 11 

12 Ind. Cl. Comm. 541 5;6 

defendant has failed to properly account in the handling of their 

funds. This, defendant, contends, will then put the parties at issue. 

Petitioners, on the other hand, -contend that it is defendant's burden 

to prove that these expenditures were legal and proper. They maintain 

that the General Accounting Office report does.mxt constitute a pleading 

on the part of defendant and that an answer as such must be filed by 

defendant. 

With this the Commission does not agree. The filing of the General 

Accounting Office reports is a proper response to the petitions. The 

reports set forth all receipts and disbursements on behalf of the various 

tribes since July 1, 1925, in accordance with the prayers of the various 

petitions. The report filed in Docket 114, Sioux Tribe of Indians of 

the Cheyenne River Reservation, South Dakota, states in part as follows 

in the introductory on pages 1 and 2: 

The petition of the Sioux Tribe of Indians of the Cheyenne 
River Reservation, South Dakota, nimiber 114, was filed before 
the Indian Claims Commission May 24, 1951, under authority 
of the Act of August 13, 1946, 60 Stat. 1049, 

The plaintiffs, on pages 5 and 6 of their petition, 
allege that the United States held a balance of not less 
than $1,579,133.01 of plaintiffs' funds on July 1, 1925 J 
that the record in a prior action shows a course of io" 
proper conduct by the United States in the use and dis^ 
position of funds belonging to plaintiffs; and that funds 
arising out of the sale of lands under the act of March 2, 
1889, 25 Stat. 888, or funds from miscellaneous receipts 
and other sources have not been accounted for by defendant 
subsequent to June 30, 1925. Plaintiffs request a conqjXet^ 
audit of all of their funds now or heretofore in the 
hands of defendant, showing use and purpose for which same 
were used or expended, beginning July 1, 1925. 



Exhibit 1 to Motion for Remand 



Case 1:06-cv-01897-JR .Document 26-2 Filed 08/11/2007 Page 7 of 11 

12 Ind. CI. Coram. 541 547 

The accounting features of this report are divided into 
three parts, designated as parts I, II, and III as set out 
in the table of contents. Part I contains the sunimary of 
disbursements; Part II, the accounting under the treaty of 
April 29, 1868, the agreement of September 26, 1876, and 
various acts of Congress; and Part III sets out the dis- 
bursements under other than treaty appropriations. Part IV 
contains a tabulation of specific treaty appropriations 
and funds under or from which disbursements were made. 

Thus the report shows the primary authority under which expenditures 
were made. From this report, the treaties and agreements, and the docu- 
ments available to petitioners in the General Accounting Office it Is 
possible for petitioners to determine which of the various items, if any, 
reflect a failure on the part of defendant to properly account for its 
actions in the handling of those particular items. 

It is the opinion of this Commission that the desirable procedure 
to be followed in these accounting cases consists of the filing of the 
General Accounting Office report by defendant in pursuance of the petition 
along with such appropriate motion as defendant may see fit under the 
circumstances. Petitioner will then file in writing within ninety (90) 
days its specific exceptions, if any, along with its reasons therefor, 
to any item or items which it contends are in violation of a proper 
accounting and which should be disallowed. Defendant will file an answer 
within the usual time. The parties will then be at issue and may proceed 
to a hearing on the matter. This is the procedure apparently favored by 
the Commission in prior cases where the problem has arisen although it 
has never been set forth in its entirety. It appears also to be the 
procedure followed by the Court of Claims. See The Sioux Tribe, et al v. 
The United Shai-^^g , 97 c. Cls. 391, 397. In the accounting phase of the 



Exhibit 1 to Motion for Remand 



Case 1:06-cv-01897-JR Document 26-2 Filed 08/11/2007 Page 8 of 11 

12 Ind. Cl. Comm. 541 548 

case of Klamath and Modoc, et al.. Docket No. 100-B, the Conmisslon 
granted defendant's motion to make more definite and certain. A dis- 
tinction appears to be proper in that the Klamath case petition makes 
certain affirmative allegations indicating knowledge on the part of 
petitioner of specific acts on the part of defendant, while these cases 
contain primarily requests for a general accounting of certain funds 
already in existence. It appears that Klamath not only seeks an 
accounting under various acts of Congress but seeks to create funds 
thereunder. Under those circumstances a motion to make more definite 
and certain would lie. We do not believe that the motion lies under a 
normal accounting case where there exists a fund, general or specific, 
over which defendant has exercised control and was under a duty to 
maintain proper accounting records to substantiate its actions. 

The contention of petitioners that it is defendant's duty to prove 
that these expenditures were legal and proper may be applicable, but at 
a later stage. The question involved here is not one of evidence but of 
pleading and procedure whereby the production of evidence is regulated. 
The above contention of petitioners is regulated by substantive law first 
and by pleading and procedure secondly. The burden of proof is a matter 
which has concerned many legal writers and appears to be resolved primarily 
on the basis of what experience has shown to be fair under a specific 
situation. There seems to be no single rule which can cover all the 
situations that may arise. • 

This Commission sitting as both judge and jury imist ultimately 
decide the qeustion of whether the burden of proof has been carried in 



Exhibit 1 to Motion for Remand 



Case 1:06-cv-01897-JR Document 26-2 Filed 08/11/2007 Page 9 of 11 

12 Ind. CI. Conm, 541 549 

both the sense of the risk of non- persuasion and of going forward with 
the evidence. The question imraediately before us concerns the deter- 
mination of a method based upon both the substantive law and pleading 
whereby both parties to these accounting cases may fairly share the 
burden of proof in both its senses. We do not believe that the pro- 
cedure outlined above is an unfair shifting of the burden of proof to 
either party. On the contrary, we feel that by this procedure the burden 
is and will be at all times where it should be, depending upon the parti- 
cular stage of the proceedings. 

To begin with the accounting rMport is in response to the petition 
and sets forth all of the available information concerning which peti- 
tioners have inquired in their petitions. There is as yet no issue in 
controversy under the pleadings and the problem now is to create an 
issue or Issues if such exists. To do this the defendant must be 
apprised of what item or items, if any, petitioners are aggrieved. If 
there are no such items then the matter is terminated and defendant 
should have summary judgment. To call upon defendant to file an 
accounting and then point out to petitioners wherein that accounting 
is wrong under the guise of having to carry the burden of proof, as 
petitioners seem to wish, would be improper. This is not a burden to 
be placed on defendant at this time. The accounting reports set forth 
all monies received and all expenditures made on behalf of the peti- 
tioning tribes by defendant. It will not be presumed by this Commission 
that those figures represent improper conduct on the part of defendant. 
To place on defendant at this stage of the pleadings the burden of proof 



Exhibit 1 to Motion for Remand 



Case 1:06-cv-01897-JR Document 26-2 Filed 08/11/2007 PagelOofll 

12 Ind. Cl. Comm. 541 550 

as that term is broadly used by petitioners, would be, in effect, to 
indulge that presumption. Therefore it is necessary that petitioners 
place, if possible, an issue or issues before this Commission by the 
most reasonable method. That method consists of exceptions supported 
by reasons therefor. In this sense the petitioners are carrying the 
risk of non- persuasion if they would hot have the Commission, sitting 
as judges, grant a motion for siammary judgment. 

When the exceptions are properly filed the issues are drawn and 
possibly no other pleading would be necessary in order to go to a hearing. 
However, in the interest of simplifying those issues and expediting the 
hearing and decision of the case, it will be required that defendant 
file an answer admitting or denying, as the case may be, the item or 
items to which objection has been made and asserting any other matter 
by way of defense which it may have. 

Upon the filing of the answer by defendant the matter may then proceed 
to a hearing on its merits if desired by either party or the Commission. 
At such hearing petitioner and defendant will have an opportunity to 
examine any witness with regard to the accounting report. If no hearing 
Is desired the matter may be submitted on briefs with the right of oral 
argument if desired by either party or the Commission. This appears 
to the Commission to be the procedure which Is most fair to both parties. 

The motions of defendant for a more definite statement or for 
summary judgment In Dockets Nos. 114, 115, 116, 117, 118 and 119 are 
denied. 

Petitioners' motions for further accounting facts in Docket Nos. 115, 
116, 118 and 119 are denied. 

Exhibit 1 to Motion for Remand 



Case 1 :06-cv-01897-JR Document 26-2 Filed 08/11/2007 Page 1 1 of 1 1 

12 Ind. CI. Coram. 541 551 

Petitioners will proceed to file their exceptions within the time 
specified. 

Orders to that effect will be entered and copies thereof as well as 
copies of this opinion will be filed in each of the above captioned cases. 

Arthur V. Watkins 



Chief Commissioner 



Wm. M. Holt 



Associate Commissioner 



T. Harold Scott 



Associate Commissioner 



Exhibit 1 to Motion for Remand 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 Page lot 18 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



Assiniboine & Sioux Tribes of the Fort 
Peck Indian Reservation v. Norton, et al. , 

Standing Rock Sioux Tribe v. Norton, et al. 

Three Affiliated Tribes of the Fort 
Berthold Reservation v. Norton, et al. , 

Shoshone-Bannock Tribes of the Fort 
Hall Reservation v. Norton, et al. , 

Chippewa Cree Tribe of the Rocky Boy's 
Reservation v. Norton, et al. , 

Yankton Sioux Tribe v. Norton, et al. , 

Osage Tribe of Indians of Oklahoma 
V. United States of America, et al, 

Crow Creek Sioux Tribe 
V. Kempthorne, et al. , 

Omaha Tribe of Nebraska 
V. Kempthorne, et al. , 

Oglala Sioux Tribe v. Kempthorne, et al. , 

The Confederated Tribes of the Colville 
Reservation v. Norton, et al. , 

Wyandot Nation of Kansas 
V. Kempthorne, et al. , 

Rosebud Sioux Tribe v. Kempthorne, et al. . 

Winnebago Tribe of Nebraska 
v. Kempthorne, et al. , 

Lower Brule Sioux Tribe 
v. Kempthorne, et al. , 



Civil Action No. 02-0035 (JR) 

Civil Action No. 02-0040 (JR) 
Civil Action No. 02-0253 (JR) 

Civil Action No. 02-0254 (JR) 

Civil Action No. 02-0276 (JR) 

Civil Action No. 03-1603 (JR) 
Civil Action No. 04-0283 (JR) 

Civil Action No. 04-0900 (.TR) 

Civil Action No. 04-0901 (JR) 

Civil Action No. 04-1 126 (JR) 
Civil Action No. 05-2471 (JR) 

Civil Action No. 05-2491 (JR) 

Civil Action No. 05-2492 (JR) 
Civil Action No. 05-2493 (JR) 

Civil Action No. 05-2495 (JR) 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 Page2of18 



Prairie Band of Potawatomi Nation 
V. Kempthorne, et al. , 

Te-Moak Tribe of Western Shoshone 
Indians v. Norton, et al. , 

Cheyenne River Sioux Tribe 
V. Kempthorne, et al. , 

Stillaguamish Tribe of Indians 
V. Kempthorne, et al. , 

Iowa Tribe of Kansas and Nebraska 
V. Kempthorne, et al , 

Confederated Tribes of the Goshute 
Reservation v. Kempthorne, et al. , 

Muskogee (Creek) Nation of Oklahoma 
v. Kempthorne, et al.. 

Eastern Shawnee Tribe of Oklahoma 
V. Kempthorne, et al. , 

Northwestern Band of Shoshone 
V. Kempthorne, et al. , 

Red Cliff Band of Lake Superior Indians 
Indians v. Kempthorne, et al. , 

Pechanga Band of Luiseno Mission Indians 
V. Kempthorne, et al. , 

Colorado River Indian Tribes 
V. Kempthorne, et al. , 

Tohono O'Odham Nation 
V. Kempthorne, et al. , 

Nez Perce Tribe, et al. , 
V. Kempthorne, et al. , 



Civil Action No. 05-2496 (JR) 



Civil Action No. 05-2500 (JR) 



Civil Action No. 06-1897 (JR) 



Civil Action No. 06-1898 (JR) 



Civil Action No. 06-1899 (JR) 



Civil Action No. 06-1902 (JR) 



Civil Action No. 06-2161 (JR) 



Civil Action No. 06-2162 (JR) 



Civil Action No. 06-2163 (JR) 



Civil Action No. 06-2164 (JR) 



Civil Action No. 06-2206 (JR) 



Civil Action No. 06-2212 (JR) 



Civil Action No. 06-2236 (JR) 



Civil Action No. 06-2239 (JR) 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 PageSofIB 



Passamaquoddy Tribe of Maine 
V. Kempthorne, et al. , 

Salt River Pima-Maricopa Indian 
Community v. Kempthorne, et al. , 

Coeur D'Alene Tribe v. Kempthorne, et al. 

Ak-Chin Indian Community 
V. Kempthorne, et al. , 

Sokaogon Chippewa Community 
V. Kempthorne, et al. , 

Gila River Indian Community 
V. Kempthorne, et al. , 

Northern Cheyenne Tribe of Indians 
V. Kempthorne, et al. , 

Haudenosaunee: The Onondaga Nation 
V. Kempthorne, et al. , 



Civil Action No. 06-2240 (JR) 

Civil Action No. 06-2241 (JR) 

Civil Action No. 06-2242 (JR) 
Civil Action No. 06-2245 (JR) 

Civil Action No. 06-2247 (JR) 

Civil Action No. 06-2249 (JR) 

Civil Action No. 06-2250 (JR) 

Civil Action No. 06-2254 (JR) 



DECLARATION OF ROSS O. SWIMMER 
IN SUPPORT OF DEFENDANTS' MOTION FOR VOLUNTARY REMAND 

Pursuant to 28 U.S.C. § 1746, 1, Ross O. Swimmer, declare as follows: 

1. I am the Special Trustee for American Indians in the United States Department of the 

Interior (Interior). I have held this position since 2003. As Special Trustee, my responsibilities 

include, but are not limited to, oversight of reform efforts for the operation of the Indian fiduciary 

trust by Interior's various offices and bureaus, and the direction and oversight of Interior's 

current and historical Indian trust accounting activities. I previously served as Interior's 

Assistant Secretary-Indian Affairs, from 1985 to 1989, in which capacity I was responsible for 

Interior's general policies regarding Indian affairs and for the oversight of Indian activities, 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 Page4of18 

principally through the Bvireau of Indian Affairs (BIA). I am an enrolled member of the 
Cherokee Nation of Oklahoma, and I served three successive terms as its Principal Chief, from 
1975 to 1985. 

2. I make this declaration in support of Interior's request for a voluntary remand and 
associated stay of the tribal trust accounting and trust mismanagement litigation claims in the 
cases specified above, so that Interior can prepare and provide a plan to address the tribes' 
request for accountings, as required by law. As described in greater detail below, in preparing 
this proposed accounting plan (which it proposes to apply to all tribes), Interior will make a 
number of factual, technical, fiscal, legal and policy determinations. Also, as described 
specifically below, Interior will review and consider the trust accounting work that it and others 
have undertaken in the past and that it is currently undertaking. I recognize and appreciate the 
significance of this matter and am committed to having Interior dedicate the necessary and 
appropriate resources, within the limits of funding provided by Congress, to prepare and provide 
the accounting plan in a timely maimer. Specifically, if the Court grants Interior's remand 
request and stays the litigation, I am committed to having Interior produce its tribal accounting 
plan within six (6) months of the date of the Court's decision granting the remand and staying the 
litigation. In my judgment, after consultation with the offices most involved in the preparation 
of a tribal accounting plan, this is a reasonable time period considering the pending workload, the 
time necessary to gather additional information from accountants and researchers, and the 
possibility of decisions from this Court in the Cobell litigation which may affect some of the 
considerations in the plan. 

3. I summarize below some of the past and current analyses, data and document collection 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 Page5of18 

efforts, and other work by Interior that is directly associated with or relevant to Interior's 
proposed tribal accounting plan. I believe that this backgrovmd information is helpfiil to the 
Court's consideration of Interior's remand and litigation stay requests. The background 
information demonstrates tribal accounting work Interior has been doing for the past and 
Interior's present capability to prepare the proposed tribal accounting plan. 

Tribal Trust Funds and Reports Made to Tribes Before 1994 

4. Interior holds money and lands in trust for American Indian Tribes according to federal 
law. The number of tribal trust fund accounts under Interior's management has grown over time 
as a result of events such as agreements and legislation. The two most common kinds of tribal 
trust fund accounts are known as proceeds of labor accounts and judgment or award accounts. 
Proceeds of labor accounts relate to revenue generated from activities that tribes authorize to 
occur on tribal trust lands, e.g., oil and gas development, farming and grazing, while judgment or 
award accounts relate to judgments or awards that tribes received from federal courts and 
Congress. Tribes sometimes have had accounts within the Individual Indian Monies (IIM) 
system; these accounts, sometimes called voluntary deposit accounts or Tribal IIM accounts (as 
distinct from the "tribal trust fund accounts" I discuss elsewhere in this declaration), were created 
for a variety of purposes, such as revolving loan funds, tribal enterprises (such as timber mill 
operations), and income from tribes' undivided interests in allotted lands. Key differences exist 
between management of tribal trust accounts and IIM accounts such as the tribal trust accounts 
are not pooled as are the IIM accounts. Also, tribal trust account disbursements are handled 
differently and normally require different types of authorization (including from tribal councils). 

5. Over the years. Interior has developed and implemented specialized policies, regulations. 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 Page6of18 

business systems and forms for handling trust funds and maintaining and reporting its records of 
account. Prior to 1951, each BIA Agency Office (typically located on Indian reservations) 
accounted for financial activity using handv^itten ledgers and journals. In the early 1950s, 
Interior installed a more centralized accounting system in the BIA Area (Regional) Offices that 
integrated all fund types, such as IIM and Tribal. Beginning in 1965, BIA began further 
centralizing its accounting functions using a mainframe computer, with that conversion 
completed in the late 1960s. The Trust Funds Management System (TFMS or Finance) was 
developed and implemented in 1968 and modified in 1974. The earliest date for which Interior 
now has electronic account and transaction data available for tribes is July 1, 1972 (the Tribal 
Electronic Ledger Era). These electronic data came from the TFMS system starting in 1982 and 
were keyed from hard copy TFMS system reports for July 1, 1972-1982. For the period before 
July 1, 1972 (the Tribal Paper Ledger Era), account and transaction information currently is 
available only in hard copy reports and ledgers. The Office of Trust Funds Management 
(OTFM) used TFMS until it converted in April 1995 to the Omnitrust system, a commercial trust 
management system used by private-sector trust entities, for activity in tribal trust fimd accounts. 
OTFM converted tribal trust fund accounts from Omnitrust to Trust 3000, another commercial 
trust management system, on March 1, 1999. Interior has the electronic transaction data from the 
Omnitrust and Trust 3000 time periods. 

6. As tribal leader from 1975-1985, 1 recall receiving reports from BIA that provided 
information on beginning and ending balances, receipts and disbursements. (Interior presently 
provides tribes with more detailed information in their periodic statements of performance, as I 
discuss below.) I am aware that account specific information about tribal trust fund accounts was 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 Page7of18 

also reported until the early 1970s in the Department of the Treasury's (Treasury) Combined 
Statement of Receipts, Expenditures and Balances of the United States Government (Combined 
Statement), a published report required to be submitted annually to Congress. 

The Tribal Reconciliation Project 

7. In May 1991, BI A hired the accounting firm, Arthur Andersen LLP (Andersen), to 
conduct agreed-upon procedures for the tribal trust fund accounts, commonly known as the 
Tribal Reconciliation Project (TRP). Interior also consuhed extensively with tribal groups, 
including what now is known as the Inter-Tribal Monitoring Association (ITMA), a national 
tribal consortium consisting of numerous federally -recognized tribes, concerning the procedures 
that Andersen would use. The information provided to tribes as part of the TRP resuhs generally 
included (1) transaction by transaction account statements (receipts, interest earnings, 
disbursements, balances, etc.) for tribal trust fund accounts for the July 1, 1972 (Fiscal Year 
1973), to September 30, 1995 (Fiscal Year 1995) period; (2) a report describing the procedures 
performed for the FY 1973 to FY 1992 period and the resuhs thereof, and (3) electronic images 
of source documents' that supported certain FY 1973 to FY 1992 transactions. 

8. The results of the TRP were provided in early 1996 to tribes with tribal trust fund 
accounts. Those tribes then were asked to attest to the accuracy of their account balances, as 
stated in their TRP results, as of September 30, 1995. I have reviewed the attestation responses 
provided by many of the tribes who now have 37 accounting cases pending before this Court. I 



1 Source documents are the various trust fund-related financial documents, including those 
related to non-investment receipt transactions (e.g., deposit ticket, schedule of collections and journal 
voucher), investment transactions (e.g., accounts distribution sheet and Treasury market securities 
purchase form), and non-investment disbursement transactions (e.g., request for withdrawal and voucher 
and schedule of payment). 



Case 1:06-cv-01897-JR Document26-3 Filed 08/11/2007 PageSoflB 

note that, for example, four of the tribes: Gila River Indian Community, the Oneida Nation, the 
Northern Cheyenne and the Stillaguamish each accepted the accuracy of the balances provided to 
them.^ The other responses received from the 54 tribes represented in the 37 cases^ before this 
Court were distributed as follows: 17 tribes disputed the results; 10 tribes requested more time 
for review. Twenty-one tribes never responded. Interior then reported to Congress on the TRP 
results, including these responses from tribes, as required by 25 U.S.C. § 4044. 
9. Following the completion of the TRP, from 1996-1998, Interior attempted to 
resolve the disputed tribal account balances of which it had been made aware. In part, this was 
by consulting with tribes (including, but not limited to those with accounting cases before this 
Court) and then submitting legislative proposals to Congress that recommended measures such as 
mediation in order to settle each individual tribe's specific claims. Interior also continued to 
work to reconcile even more of the non-investment transactions than had been completed within 
the deadline Congress had set for the completion of the TRP. 

Overview of Selected Trust Reform Measures, 1994-Present 
10. In 1994, Congress created the Office of the Special Trustee for American Indians (OST) 
and charged the Special Trustee with the responsibility to ensure that Interior developed and 
implemented appropriate reform measures to further discharge its trust duties. In particular, 
Congress tasked the Special Trustee with monitoring a "fair and accurate accounting" of the trust 



2 Oneida is part of the Haudenosaunee confederation. 

3 Wyandot Nation of Kansas and Mohawk Nations did not receive a TRP. The additional 1 1 
named Plaintiffs under Nez Perce had their own responses; there are five (5) additional tribes under 
Haudenosaunee. Passamaquoddy had two governing entities, of which only one responded. 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 Page9of18 

accounts. (25 U.S.C. § 4043(b)). By Secretarial Order No. 3197, the Secretary of Interior then 
transferred OTFM and certain other Agency personnel, with responsibility for managing and 
administering trust funds, from the BIA to OST in 1996. 

1 1 . Another significant trust reform measure in the post- 1 994 period relates to the 
consolidation and safeguarding of Indian records. To date, Interior has indexed and consolidated 
over 156,000 boxes of inactive Indian-related records, containing an estimated 392 million pages, 
at the American Indian Records Repository (AIRR) in Lenexa, Kansas." The AIRR is a national 
repository for American Indian records created in 2004 pursuant to a Memorandum of 
Understanding between Interior and the National Archives and Records Administration (NARA). 
Well over half of these boxes contain records pertaining to trust funds and trust assets, while the 
remainder relate to other BIA programs (such as law enforcement, education and general 
administration). A significant number of additional boxes of Indian-related records are retained 
at various other NARA Federal Record Centers and at National Archives such as that in 
Washington, D.C., as well as at various Interior and Treasury offices across the country. 

Current Accounting Work 

12. As noted above, on April 1, 1995, OTFM began using the Omnitrust system, a 
commercial trust management system, to account for activity in tribal trust fund accounts, 
including financial investment holdings. OTFM used Omnitrust to report receipt, disbursement 
and investment activity to the tribes. The Omnitrust account statements also provided tribes with 
detail about investment purchases, maturities, and earnings, as well as information about tribes' 



4 Inactive records are those that are no longer required for the agency's day-to-day activities and 
that have met the applicable schedule for retirement. 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 Page 10 of 18 

financial investment holdings, as of the date of each statement. 

13. Since OST assumed responsibility for trust funds management in 1996, it has been 
performing the current accounting activities. One important outcome of that current accounting 
work is the preparation and delivery of periodic statements of performance, which are required 
by the American Indian Trust Fvmd Management Reform Act of 1994 (the 1994 Act) to be sent at 
least quarterly (although tribes may request more frequent statements, and the majority of tribes 
are receiving monthly statements). Statements of performance include information such as types 
of receipts, income and disbursements; beginning and ending balances; and financial investment 
holdings including earnings, gains and losses. 

14. In 1998, OST began converting trust accounts into the Trust 3000 system, commonly 
referred to as the Trust Fund Accounting System (TFAS). OST converted tribal trust accounts 
to TFAS in March 1, 1999. TFAS facilitates regular reporting to tribes concerning their trust 
funds and investment activities. In addition to the statements of performance described above, 
TFAS also provides Interior with reconciliation tools for daily activity. This daily activity is then 
reconciled with the daily financial activity posted at Treasury. Interior's reporting to tribes also 
includes detailed information about the investments held for each account. On a monthly basis, 
OST reconciles financial investment holdings on TFAS to the custodian holding the securities. 
Interior works continuously to make key improvements in its trust fund accounting systems and 
controls. 

Tribal Work of the Office of Historical Trust Accounting 

15. By Secretarial Order No. 2321, the Secretary of the Interior on July 10, 2001, established 
the Office of Historical Trust Accounting (OHTA) within the Office of the Secretary, and 

10 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 PagellofIB 

initially charged it with the responsibility to plan, organize, direct, and execute the historical 
accounting for IIM account holders. In July 2002, the Order was amended to expand OHTA's 
responsibility to include tribal historical accountings. OHTA now performs its historical 
accounting work under my direction and oversight, as of June 25, 2007. 
16. Between 2002-2006, OHTA's tribal work focused largely on the specific issues and 
questions raised by those tribes that had filed cases prior to December 2006. Rather than proceed 
with active litigation, most of those tribes expressed a preference for working with Interior in the 
context of settlement negotiations (including ADR). As part of this process, OHTA has provided 
briefings on the TRP to these and other tribes; has examined the TRP work papers of Andersen 
as well as related document collections; and has prepared various accounting analyses and data 
compilations of trust account-related materials. In addition, OHTA has collected a wide variety 
of documents to reconcile or otherwise explain tribal transactions, including for periods before 
the 1972 start of the TRP (that is, during the Tribal Paper Ledger Era). It also has performed 
work to (1) aggregate historical electronic transaction data in such a way that it can be compared 
to a control source (i.e., contemporaneous account statements produced for, or by, BIA and/or 
OST) and (2) test the data to ensure that aggregate fund balances roll forward appropriately 
across reporting periods and from one system to another. The ultimate goal of this work is to 
compile transaction records and data from disparate historical systems into a single, uniform data 
set that will facilitate analyses and tests of transaction data and account balances. 
17. In the years from 2003 to the present, OHTA also has worked to develop a programmatic 
approach to tribal accounting issues for tribes, including tribes that had not filed cases prior to 
December 2006. As one important project, OHTA entered into a Cooperative Agreement with 

11 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 Page 12 of 18 

ITMA in 2004. OHTA has provided financial support under the terms of the Cooperative 
Agreement that has enabled ITMA to hire accountants and other experts to help seven of its 
member tribes (who were selected by ITMA) to participate in this Project to better understand 
their TRP results and then work with OHTA to develop a methodology that aims to produce 
information to resolve any still-disputed tribal account balances. To date, the Project has 
produced a draft methodology that proposes to test disbursements, evaluate investments and 
assess the completeness of tribal accounts. 

18. OHTA also has used statistical sampling methods to reach valid conclusions on the 
accuracy of land-based IIM accounts and to reduce the costs and time of reaching those 
conclusions. The cost of reconciling a single account transaction may well exceed the amount of 
many transactions at issue. Similarly, OHTA expects to decide whether and how to utilize 
statistical sampling methods to test the accuracy and completeness of tribal trust fund accounts. 
Under my direction, OHTA will evaluate its "lessons learned" from the various accounting- 
related tasks it has performed to date as Interior assesses and defines the nature and extent of its 
tribal accounting work during remand. 

The "Regulatory Initiative" 

19. Interior routinely engages in Government-to-Govemment consultations with federally- 
recognized tribal nations, as all federal agencies are required to do by, for example, various 
Presidential directives and Executive Orders.' Beginning in 2004, Interior began to consult with 
tribes on the development of regulations intended to establish an administrative agency process 



5 See, e.g.,. Exec. Order No. 13175, 65 Fed. Reg. 67249 ("Consultation and 
Coordination with Indian Tribal Governments") (Nov. 6, 2000) and 'Pres. Mem. of April 29, 
1994, 59 Fed. Reg. 22951 (both reprinted in 25 U.S.C. § 450). 

12 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 Page 13 of 18 

for resolving trust account holder questions or concerns about their trust funds accountings. 
Interior first described the concepts of this draft regulation in a September 2004 letter to the 
leaders of federally-recognized tribes, which I co-signed. However, Interior received written 
comments from only four tribes in response, and all requested more specific information on this 
proposal. On December 27, 2005, and again on July 7, 2006, Interior next shared copies of the 
preliminary draft of the regulatory language with the leaders of federally-recognized tribes as 
well as other organizations in Indian Country, again seeking comments and recommendations. 
Interior also presented those preliminary drafts to and sought comments from tribes at three tribal 
consultation meetings - in Albuquerque, New Mexico, on February 14, 2006, in Portland, 
Oregon, on August 15, 2006, and again in Albuquerque on August 17, 2006. The comments we 
received during (and after) these tribal consultation meetings identified several issues that 
continue to influence Interior's consideration of the manner in which it will produce accountings 
for tribes. Interior expects to decide whether and how to proceed with this rule-making process 
as part of the work it will undertake during the remand period. 

Interior's Request for Voluntary Remand 

20. I am committed to ensuring that Interior provides tribes with historical accountings in 
accordance with its understandings and interpretations of applicable law. Interior seeks remand 
at this time so that it may fiirther consider, and act upon, the implications of certain recent factual 
and policy developments, particularly with respect to the Cobell litigation (including the various 
judicial decisions as well as the upcoming October 2007 trial) and the anticipated impacts of the 
many new tribal suits filed in December 2006. 

21 . More specifically. Interior seeks remand so that it may apply the tribal accounting 

13 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 Page14of18 

expertise it has developed as the result of its 2002-2006 accoimting-related work with the earliest 
tribal trust plaintiffs, the insights gained from its 2004-06 consultations on the Regulatory 
Initiative, and other factors (such as those I have described in this declaration) to prepare its 
fully-articulated explanations of the features of an historic accounting for tribes that it deems 
compliant with law. In doing so. Interior also welcomes and will give due consideration to all 
specifications that may be made by the Tribes of any defects they believe exist in any financial 
information Interior previously has provided to them (including, but not limited to, the TRP 
results, account statements and source documents). 

Considerations to be Addressed in Providing Historical Accountings to Tribes 
22. Interior intends to prepare an accounting plan and accompanying record that fully 
articulates its understanding and interpretations of its various tribal accounting duties under law. 
In producing the plan, among other issues and questions. Interior will consider various factors 
such as, but not limited to, whether or how: 

• prior accountings, reconciliation, auditing and reporting efforts by Interior, other 
government agencies and private accountants may be relied upon in the present 
accounting effort, particularly in avoiding duplicative efforts by Interior; 

• to conduct a formal cost benefit analysis of the value of any further work; 

• to determine accurate cash balances in tribal accounts, such as by analyses and tests 
(including but not limited to those that use statistical sampling methods) of the accuracy 
and completeness of the postings to accounts; 

• to determine the types, quantity and quality of documents necessary for the analyses and 
tests of the accuracy and completeness of the postings to accounts; 

• to present accounting information to each tribe and determine the degree of detail to 
provide for each transaction; 

• to include other accounts in the accounting, such as tribal IIM accounts and closed 

14 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 Page 15 of 18 



accounts; 

• to establish a starting and ending date for the tribal accountings, which may vary by tribe 
or account; 

• to conduct and incorporate into its accountings a review and accounting of non-monetary 
assets, such as real property and natural resources; 

• to sequence its accountings - such as by tribe, account type, time period, sample basis, 
revenue source, or pilot scale and full scale testing; 

• to solicit the input of tribes into accounting issues raised by tribes and the exceptions they 
have raised to accounting products provided to date; 

• to incorporate ADR, other negotiation processes, and exceptions to any general rules for 
tribal accountings into its plan and process for administratively completing accountings; 

• to allocate its budget among settlement efforts, litigation support, and formal tribal 
accountings, as well as between tribal and IIM work; 

• to promulgate a formal rule to cover some or all of these matters, including an 
administrative appeal process; 

• to address prior reports criticizing Interior's trust asset management and accounting; 

• other applicable law, such as the Indian Claims Commission Act, the Interior 
appropriations riders and acts and many aspects of Title 25 of the United States Code 
regarding trust asset management, affects the determination of what accounting is owed; 

• a tribe's response or failure to respond to the TRP affects its claim to any further 
accounting; and 

• to exercise its discretion as to other aspects of the accounting to the extent permitted by 
law. 

23. Further, in the tribal accovmting plan. Interior will analyze and evaluate the similarities 

and differences between IIM accountings and those that have been and will be performed for 

tribal accounts. In conducting this analysis and evaluation, Interior will examine closely all of 

the relevant characteristics of each tribe. Unlike the IIM account holders, tribes with tribal trust 



15 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 Page16of18 

fund accounts were provided the results of the TRP which included, among other things, a 
statement of account balances as of a given date and accompanying requests to verify the 
accuracy of that stated balance. 

24. In contrast to the IIM accountings, tribal accountings also implicate the Govemment-to- 
Government relationship that exists between the federal government and each individual tribe. 
The Indian Reorganization Act of 1934 ( c. 576, 48 Stat. 984, codified as amended at 25 U.S.C. 
§§461 et seq) and other laws have given tribes a great deal of autonomy over the management 
of their trust assets. Some tribes have existed continuously as sovereign entities since time 
immemorial, and have trust assets dating back to the nineteenth century; others have been 
federally-recognized only in recent decades. Some tribes have considerable assets, others very 
few; some tribes have only a single trust account, consisting perhaps of a judgment fund; others 
have multiple types of accounts, dating from different times and containing funds from different 
sources (such as timber or other natural resource revenues). Tribes also play significant roles in 
leasing and other asset management decisions, many through their own corporations, and they 
reside in close proximity to their assets (unlike individuals, who can live thousands of miles 
away from their often-fractionated assets). Thus, each tribe has a potentially different starting 
date for the historical accountings of each of its accounts, depending upon factors such as when 
that account was opened, the effect of the Indian Claims Commission Act, and whether any tribal 
rights to an accounting as to any specific tribal account have been extinguished through 
litigation. 

25 . Interior currently maintains approximately 1 ,450 tribal trust fund accounts for over 300 
different tribal entities, as contrasted with the approximately 365,000 IIM accounts implicated in 

16 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 Page 17 of 18 

the Cobell litigation. I understand that, as of September 30, 2006, the total trust fund balances 
held for tribes exceeds $2.9 billion, six times more than that held for individual Indians.* The 
dollar throughput for a tribal trust account generally is much greater than that for any single 
individual Indian's account. All of these and other distinctions in turn may affect Interior's 
resolution of issues such as the cost-benefit analysis that will most certainly be a part of its 
decision-making about the performance of particular accounting or reconciliation tasks. 
26. As part of its tribal accounting plan, Interior will review and address the tribes' non- 
monetary trust asset accounting claims. The review and determination requires Interior to 
consider and decide numerous factual issues. For instance, some tribes have never had any land 
held in trust for them by the United States, while some tribes have land-based assets which are 
not now, or at various times have not been, under federal management and control, but instead 
are or have been held and entirely managed by those tribes themselves. Interior needs to 
determine the level of land-based or non-monetary asset accountings owed to those tribes in 
those situations. Interior also needs to examine and determine the significance and impact, if 
any, of all of the already-existing accounting-related products that have been available to the 
tribes. 



6 According to the U.S. Department of Interior Office of the Inspector General: 
Independent Auditors ' Report on the Tribal and Other Trust Funds and Individual Indian 
Monies Trust Funds Financial Statements for Fiscal Years 2006 and 2005 Managed by the 
Office of the Special Trustee for American Indians, Report No. Q-IN-OST-000 1-2006. 

17 



Case 1:06-cv-01897-JR Document 26-3 Filed 08/11/2007 Page 18 of 18 



I declare under penalty of perjury that the fo;/going)is true arid cen^ct. Executed on August 10, 

/ 
2007. / y y7{ /' 




18 



Case 1:06-cv-01897-JR Document26-4 Filed 08/11/2007 Page 1 of 5 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



Assiniboine & Sioux Tribes of the Fort 
Peck Indian Reservation v. Norton, et al. , 

Standing Rock Sioux Tribe v. Norton, et al. 

Three Affiliated Tribes of the Fort 
Berthold Reservation v. Norton, et al. , 

Shoshone-Bannock Tribes of the Fort 
Hall Reservation v. Norton, et al. , 

Chippewa Cree Tribe of the Rocky Boy's 
Reservation v. Norton, et al. , 

Yankton Sioux Tribe v. Norton, et al. , 

Osage Tribe of Indians of Oklahoma 
V. United States of America, et al, 

Crow Creek Sioux Tribe 
V. Kempthorne, et al. , 

Omaha Tribe of Nebraska 
V. Kempthorne, et al. , 

Oglala Sioux Tribe v. Kempthorne, et al. , 

The Confederated Tribes of the Colville 
Reservation v. Norton, et al. , 

Wyandot Nation of Kansas 
V. Kempthorne, et al. , 

Rosebud Sioux Tribe v. Kempthorne, et al. , 

Winnebago Tribe of Nebraska 
V. Kempthorne, et al. , 

Lower Brule Sioux Tribe 
V. Kempthorne, et al. , 



Civil Action No. 02-0035 (JR) 

Civil Action No. 02-0040 (JR) 
Civil Action No. 02-0253 (JR) 

Civil Action No. 02-0254 (JR) 

Civil Action No. 02-0276 (JR) 

Civil Action No. 03-1603 (JR) 
Civil Action No. 04-0283 (JR) 

Civil Action No. 04-0900 (JR) 

Civil Action No. 04-0901 (JR) 

Civil Action No. 04-1 126 (JR) 
Civil Action No. 05-2471 (JR) 

Civil Action No. 05-2491 (JR) 

Civil Action No. 05-2492 (JR) 
Civil Action No. 05-2493 (JR) 

Civil Action No. 05-2495 (JR) 



Case 1:06-cv-01897-JR Document26-4 Filed 08/11/2007 Page 2 of 5 



Prairie Band of Potawatomi Nation 
V. Kempthome, et al. , 

Te-Moak Tribe of Western Shoshone 
Indians v. Norton, et al. , 

Cheyenne River Sioux Tribe 
V. Kempthome, et al. , 

Stillaguamish Tribe of Indians 
V. Kempthome, et al. , 

Iowa Tribe of Kansas and Nebraska 
V. Kempthome, et al. , 

Confederated Tribes of the Goshute 
Reservation v. Kempthome, et al. , 

Muskogee (Creek) Nation of Oklahoma 
V. Kempthome, et al. , 

Eastern Shawnee Tribe of Oklahoma 
V. Kempthome, et al. , 

Northwestern Band of Shoshone 
V. Kempthome, et al. , 

Red Cliff Band of Lake Superior Indians 
Indians v. Kempthome, et al. , 

Pechanga Band of Luiseno Mission Indians 
V. Kempthome, et al. , 

Colorado River Indian Tribes 
V. Kempthome, et al. , 

Tohono O'Odham Nation 
V. Kempthome, et al. , 

Nez Perce Tribe, et al. , 
V. Kempthome, et al. , 



Civil Action No. 05-2496 (JR) 



Civil Action No. 05-2500 (JR) 



Civil Action No. 06-1897 (JR) 



Civil Action No. 06-1898 (JR) 



Civil Action No. 06-1899 (JR) 



Civil Action No. 06-1902 (JR) 



Civil Action No. 06-2161 (JR) 



Civil Action No. 06-2162 (JR) 



Civil Action No. 06-2163 (JR) 



Civil Action No. 06-2164 (JR) 



Civil Action No. 06-2206 (JR) 



Civil Action No. 06-2212 (JR) 



Civil Action No. 06-2236 (JR) 



Civil Action No. 06-2239 (JR) 



Case 1:06-cv-01897-JR Document 26-4 Filed 08/11/2007 Page 3 of 5 



Passamaquoddy Tribe of Maine 
V. Kempthorne, et al. , 

Salt River Pima-Maricopa Indian 
Community v. Kempthorne, et al. , 

Coeur D'Alene Tribe v. Kempthorne, et al, 

Ak-Chin Indian Community 
V. Kempthorne, et al. , 

Sokaogon Chippewa Community 
V. Kempthorne, et al. , 

Gila River Indian Community 
V. Kempthorne, et al. , 

Northern Cheyenne Tribe of Indians 
V. Kempthorne, et al. , 

Haudenosaunee: The Onondaga Nation 
V. Kempthorne, et al. , 



Civil Action No. 06-2240 (JR) 

Civil Action No. 06-2241 (JR) 

Civil Action No. 06-2242 (JR) 
Civil Action No. 06-2245 (JR) 

Civil Action No. 06-2247 (JR) 

Civil Action No. 06-2249 (JR) 

Civil Action No. 06-2250 (JR) 

Civil Action No. 06-2254 (JR) 



DECLARATION OF DAWN M. BOSWELL 

Pursuant to 28 U.S.C. section 1746, 1, Dawn M. Boswell, declare as follows: 

1. I am employed by the United States Department of the Interior (Interior). 

2. I am the Records Section Chief of the Information Management Branch, National Business 
Center. I have held this position since April of 2006. In my capacity as Chief, I oversee the 
maintenance of Interior's Secretarial Records. I certify that the attached documents are 
true and correct copies of Interior department records. 

• Recommendations of the Secretary of the Interior for Settlement of Disputed Tribal Trust 
Fund Accounts (Nov. 13, 1997); 

• Letters and Report from Bruce Babbitt, Secretary of the Interior to Hon. John McCain and 



Case 1:06-cv-01897-JR Document26-4 Filed 08/11/2007 Page 4 of 5 

Hon. Don Young (May 31, 1996); 

Letters and Report from Bruce Babbitt, Secretary of the Interior to Hon. John McCain and 
Hon. Don Young (December 11,1 996), enclosing Proposed Legislative Options in Response 
to Tribal Trust Fund Reconciliation Project Results (1996). 



Case 1:06-cv-01897-JR Document26-4 Filed 08/11/2007 Page 5 of 5 



I declare under penalty of perjury that the foregoing is true and correct to the best of my 
knowledge, information and belief, and thaWhis declaration was executed on August ^10, 2007. 



masL 



I Xj' 





DAWN M. BOSWELL 



Case 1 :06-cv-01 897-JR Document 26-5 Filed 08/1 1/2007 Page 1 of 1 5 



ATTACHMENT A 



TO BOSWELL 



DECLARATION 



PARTI 



1 Gase 1:06-cv-01897-JR Document 26-5 Filed 08/11/2007 Page 2 of 15 
United States Department of the Interior 

BUREAU OF INDIAN AFFAIRS 
"Wuhington. D.C. 20240 




IN R£PLr REFER TO. 



Noy ] 3 mi 



Dear Tribal Leader: 



( 



Enclosea you will find the Department of the Interior's report entitled Recommendations of the 
Secretary of the Interior for Settlement of Disputed Tribal Trust Fund Accounts. These 
recommendations constimte the culmination of our multiyear effort, under the Indian Trust 
Funds Management Reform Act of 1994, to outline measures to resolve disputed Tribal trust 
fund account balances. A press release is also enclosed. 

This proposal builds on the legislative options for settlement that the Department submitted to 
Congress on December 11, 1996, and that we sent to you at the same time. After submitting 
the options to Congress, the Department consulted with and provided an oppormnity for 
written comments from Tribal representatives throughout the country about the approaches we 
were considering. As you will note from our reconunendations, we have significantly altered 
many of our initial suggestions based on your comments. 

The following objectives guided the formulation of this proposal: 

• acknowledge and respect Tribal sovereignty; 

• achieve a settlement that is fair to both the Indian community and the general 
public; 

• achieve the most resource-efficient settlement of claims (in terms of conserving 
federal government and Tribal time, money, and staff); 



• 



encourage settlement by providing incentives to settle and disincentives to 
litigate; 

use the most informal settlement processes available rather than litigation to 
encourage Tribal participation; 

obtain funding for the settlement without reducing appropriations for the BIA 
and Office of the Special Trustee budgets and Tribal programs; and 

achieve agreement on account balances through September 30, 1992, or the date 
of settlement, as an agreed-upon starting point for the fumre. 



Attachment A Part 1 to Boswell Declaration Qggg 



Case 1:06-cv-01897-JR Document 26-5 Filed 08/11/2007 Page 3 of 15 



The legislation which we propose seeks to settle claims relating to the Department's 
management of Tribal trust funds for the period July 1, 1972 through at least September 30, 
1992, and at each Tribe's option, for the period after 1992 through the date of senlement. 
Unlike the options presented in the Department's December report, we do not recommend a 
ui;ii»«-uic\"iL mvul/ing a singular, piu'5'imiu"iiiitiu^aCi»v7u'Miou'"'ab oaiiK. "^ 

Rather, the proposal recommends a two-stage settlement process for resolving accounting 
claims. First, the government would pay each Tribe for known errors (regardless of whether 
it accepts any settlement offer) and would offer each Tribe the oppormnity to settle other 
claims immediately for a specific sum based on a formula that takes into account the panicular 
^ characteristics of the Tribe's accounts. If the Tribe accepts the offer, claims would be settled 
according to the formula, and the matter would be closed. If the Tribe does not accept the 
offer, if would be withdrawn and stage one would be concluded. 

In stage two, Tribes would have the opportunity to engage in government-to-government non- 
binding settlement negotiations with the assistance of a mediator. This opportunity for 
individual Tribal negotiations was not proposed in the December report, but it was 
recommended by numerous Tribes during the consultation process. As part of the 
negotiations, there would be an opportunity to obtain additional data or undertake additional 
analysis to the extent it would be constructive in reaching a satisfactory resolution of claims. 
In the event that the mediation process is not successful, a Tribe would be authorized to file a 
claim in the United States Court of Federal Claims within the parameters defined by Congress 
in the legislation. 

The reconciliation project encompassed the reconstruction of $17.7 billion in non-investment 
transactions, of which $15.3 billion — about 86 percent — were reconciled. For the reconciled 
transactions, approximately $1,87 million in transactions were in error ~ an error rate of only. 
.01 percent. The remaining transactions ($2.4 billion) were deemed to be "unreconciled," 
meaning that the Department could not locate all source documents required under the Project 
procedures to verify the accuracy of the general ledger entry for the transactions within the 
time frame allotted to the reconciliation process. While this does not mean that the $2.4 
billion is lost or missing, it indicates that the poor condition of the records and systems did not 
allow the federal government to conduct a complete audit or provide the level of assurance to 
account holders that was expected. Work on the unreconciled transactions has continued, 
reducing the total value of those transactions from $2.4 billion to $1.97 billion. 

This proposal is one aspect of a larger, three-pronged effort to account and provide 
compensation for inadequacies of the past, and reform the Department's management of trust 
funds. Remedying these inadequacies is a major goal of Secretary Babbitt. First, we have 
embarked on a concerted program to implement key elements of the strategic plan of the 
Special Trustee for American Indians to improve the underlying trust management and 
accounting systems. If we receive the necessary funding for our initiative, significantly 
upgraded systems will be in place nationwide in three years. Second, we have proposed 
legislation to halt and reverse fractionated ownership of Indian land. We believe this is a 



Attachment A Part 1 to Boswell Declaration 0810 



Case 1:06-cv-01897-JR Document 26-5 Filed 08/11/2007 Page 4 of 15 



critical element in assuring our abilit}' to manage trust funds properly. 

This proposal to settle past claims is the third component. This proposal could affect the 
interests of all Tribal trust account holders. I encourage you to review this material and 
'paiuupalc in the Cotigressionui'pruCcSo tnruirgii wiiicn ine pTufiusafwiiroe consiaeted. 

Sincerely, 



Deputy Commissioner of Indian Affairs 



Enclosures 



Attachment A Part 1 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-5 Filed 08/11/2007 Page 5 of 15 





I 




I 




Recommendations 

of the 



^-2^ --»'_ 




of tKe 
Interior 



^S .£ 



for Settlement of 




Fund 



Accounts 



Attachment A Part 1 to Boswell Declaration 



OR 17 



Case 1:06-cv-01897-JR Document 26-5 Filed 08/11/2007 Page6of15 



TABLE OF CONTENTS 




■-^'•*^c$^'u«es*'- *-*— ■ ' 



Executive Summary 1 

1. Trust Funds: An Overview 3 

Objectives for Settlement Proposal 4 

The Nature of Trust Fimds 4 

2. Background On Efforts To Resolve The Problems 6 

Actions to Reconcile the Accounts 6 

American Indian Trust Fund Management Reform Act of 1994 7Z...7.S. 7 

The Reconciliation Project Results 8 

Tribes Address the Reconciliation 9 

The Limitations of the Reconciliation 9 

3. The Department's December Report On Settlement Options 10 

Tjqje 1 Claims 10 

Type 2 Claims 11 

Type 3 and Other Claims Outside the Scope of the Project 11 

Tribal Comments on the Options 11 

4. The Settlement Proposal 13 

Scope of the Settlement 13 

Global Settlement 14 

Overview of the Settlement Proposal 14 

Additional Reconciliation 15 

Settlement of Known Errors 16 

Rate of Interest 17 

Netting and Forgiveness 18 

Settlement of Claims for the Period 1972 Through the Date of Settlement 20 

Stage One: The Settlement Offer 20 

Stage Two: Govemment-to-Govemment Negotiations 21 

Litigated Resolution of Claims for the Period 1972 to Date of Settlement 22 

Resource Requirements for the Settlement Process 24 

5. Conclusion .... 26 

Attachment A Part 1 to Boswell Declaration " qj^|3 



Case 1:06-cv-01897-JR Document 26-5 Filed 08/11/2007 Page 7 of 15 




EXECUTIVE SUMMARY 



The Administration is pursuing a three-pronged 



*\. :. ^^f''^/ '.■j--ad dressissue:;-' .'.,: 






which $15 3 billio n — about 86 percent — were 






ment of the Interior's administration and manage- 
ment of Indian trust funds. First, in this report we 
are proposing a legislative approach that utilizes 
informal dispute resolution mechanisms to ad- 
dress claims that Tribes may have with regard to 
the Department's past management of Tribal trust 
hand accounts. Second, in conjunction with the 
Special Trustee for American Indians, we have . 
developed recommendations for improving the 
underlying trust management and accounting 
systems, and are in the process of implementing 
those improvements. Third, we have proposed 
legislation to end the increasing fractionation of 
ownership of Indian allotted lands. This fraction- 
ation of interests not only undermines the eco- 
nomic vitality of allottee-owned land, but it also 
severely complicates the government's manage- 
ment of trust assets and resources. 

The recommendations encompassed in this report 
are the culmination of a five-year, $21 -mi llion 
effojLtQ-cgco ncile Tribal trust accoun ts as man- 
dated by Congressionzil directives beginning in 
1987, and reconfirmed in the American Indian 
Trust Fund Management Reform Act of 1994 ("the 
Act"). As of August 1, 1997, the Secretary of the 
Interior, through the Office of the Special Trustee 
(OST), maintains approximately 1,500 accounts for 
338 Tribal entities with assets in excess of $2.5 
billion. Each year, more than $802 million passes 
through the Tribal trust funds system. Although 
not the focus of this report, the OST also main- 
tains over 300,000 individual Indian money (HM) 
trust fund accounts through which over $300 
million pass each year. 

The Tribal Reconciliation Project (the "Project") 
was undertaken by Arthur Andersen, LLP, 
("Arthur Andersen") under the supervision of the 
Department. The basic reconciliation procedures 
of the Project encompassed the reconstruction of 
$17.7 billion in non-investment transactions, of 



proximately $1.87 million in transactions were in 
error — an error rate of .01 percent. The remain- 
ing 14 percent of transactions ($2.4 billion) were 
deemed to be "unreconciled," meaning that the 
Department could not locate all source documents 
required under the Project procedures to verify 
the accuracy of the general ledger entry for the 
transactions within the time frame allotted to the 
reconciliation process. (As described below, 
reconciliation v.^ork-has continued resulting in the 
reconciliation of almost $.5 billion of previously 
unreconciled transactions). While this does not 
mean that the $1.97 billion is lost or missing, it 
indicates that the poor condition of the records 
and systems did not allow the federal government 
to conduct a complete audit or provide the level of 
assxirance to account holders that was expected. 
The results of the Project are described in more 
detail in this and the earlier reports described 
below. 

Upon completion of the Project,„the Act directed 
the Secretary of the Interior to prepare a report to 
Congress by May 31, 1996, outlirung the Project 
results and the efforts the Secretary will undertake 
to resolve disputes regarding Tribal trust accovint 
balances. Because Tribes required additional time 
to review their Project reports, an interim report 
was submitted to Congress on May 31, 1996, with 
a supplemental report filed on December 11, 1996 
(the "December Report"). The December report 
also described a series of legislative options for 
resolving disputes regarding Tribal account 
balances. The Department engaged in a consulta- 
tion process with Tribes on those options, includ- 
ing four public meetings and the opportunity to 
file written comments. The legislative recommen- 
dations for resolving disputed account balances 
contained in this report are based in part on the 
options in the December report and the comments 
of Tribal representatives in the consultation 
process. 



Attachment A Part 1 to Bosvyell Declaration 



0814. 



Case 1:06-cv-01897-JR Document 26-5 Filed 08/11/2007 Page 8 of 15 



The legislation which we propose seeks to settle 
"CiLT^nis jLtidting~to the'lDepii :SCs^'i<'^\ncixi<T^Cxxi<:iiC ' 
of Tribal trust funds for at least the period July 1, 
1972 through September 30, 1992, and at the - 
Tribes' option, for the period after 1992 through 
the date of settlement. Unlike the options pre- 
sented in the Department's December report and 
the recommendations of the Special Trustee, we 
do not recorrunend a settlement involving a 
singular, programmatic action such as an Indian 
Development Bank. Rather, there would be. a 
Tribe-by-Tribe, govemment-to-govemment settle- 
ment process which would take into account the 
specific circumstances and claims of each Tribe. 

The OS T, in conjunction with the accounting firm 
ofTIfiavarria, Dunn e ^&: Lam ey, LLC, has contin- 
ued its efforts to locate documents and reconcile 
some of the pre\'iousIy unreconciled disbxirsement 
transactions utilizing the same procedures used 
by Arthur Andersen in the Project. Once this 
process has been completed, the Tribes will be 
provided with a report describing the impact of 
the additional work. Under the settlement we 
propose, the government would identify all errors 
identified by both the Project and the additional 
subsequent work ("known errors"), and would 
pay the Tribes where money was found to be 
owed, with compound interest, as soon as pos- 
sible. Because the government, as trustee, is 
obligated to correct its errors, these payments 
would be made notv\'ithstanding a Tribe's willing- 
ness to settle its other claims. 

The proposal then recommends a two-stage 
settlement process for resolving accounting claims 



other than those relating to known errors. First, 
ate^'gtrTtniuhffawuaiuXriie^ Uie oppor- 

tunity to settle claims immediately for a specific 
sum based on a formula that would take into 
account the particular characteristics of the Tribe's 
accounts. If the Tribe accepts the offer, claims 
would be settled by payment according to the 
formula, and the matter would be closed. If the 
Tribe does not accept the offer, it would be with- 
drawn and stage one would be concluded. 

In stage two. Tribes would have the opporhonity 
to engage in govemment-to-govemment non- 
binding settlement negotiations with a mediator. 
This opportunity for individual Tribal negotia- 
tions was not proposed in the December report, 
but it was recommended by numerous Tribes 
during the consultation process. As part of the 
negotiations, there would be an opportunity to 
obtain additional data or undertake additional 
analysis to the extent it would be constructive in 
reaching a satisfactory resolution of claims. If the 
mediation process is not successful, a Tribe would 
be authorized to file a claim in the United States 
Court of Federal Claims within the parameters 
defined by Congress in the legislation. 

This report provides a brief historical overview of 
Indian trust funds (Part 1), some background on 
efforts to address the problems relating to trust 
fund management and accounting, including the 
Reconciliation Project (Part 2), a description of the 
Department's December report, including the 
options for settlement of Tribal claims and Tribal 
response (Part 3), and in Part 4, a detailed discus- 
sion of the Department's settlement proposal. 



Attachment A Part 1 to Bgswell Declaration 



0815 



Case 1 :06-cv-01 897-JR Document 26-5 Filed 08/1 1/2007 Page 9 of 1 5 




1. TRUST FUNDS: AN OVERVIEW 



For nearly 70 years. Congress eind the Executive 
^^:v-.:^d hayeinade-fepp-^-f;fa3^e'^^^^?5^{^'^-^^ ^'■'■e 
Bureau of Indian Affairs' accounting systems and 
procedures. These efforts, however, have never 
received the resource comirdtment necessary to 
keep pace with the task. Meanwhile, the prob- 
len\s and the costs of addressing them have 
continued to increase. 

For the first time in the last six decades, real 
progress is being made. Secretary Babbitt has 
made proper accounting and management of 
Indian trust funds a major priority for the Depart- 
ment. We are proposing to work closely with 
Congress to compensate any Tribal trust fund 
account holders that have been harmed by past 
accounting and financial /trust fund management 
practices and to fix the systems and practices that 
led to problems in the first place. With a major 
reconciliation of the Tribal trust funds completed 
— at great cost to the United States — and 'vvith 
plans under development to repair and upgrade 
the basic accounting systems, the Secretary be- 
lieves that we have a historic opportunity finally 
to resolve this issue. 

This report and proposal is one component of a 
three-part effort to address this very complex , 
matter. It is the culmination of many years of 
intensive v/ork and it proposes what we believe is 
a comprehensive, logical and fair process for 
compensating Tribes for any losses they may have 
suffered from July 1, 1972 through September 30, 
1992, as a result of the trust fund management and 
accounting systems in place. At the Tribes' option, 
settlement could also be reached for the period 
after 1992 through the date of settlement. We 
believe that addressing problems of the past is a 
fundamental component of facing the future. 

A second and separate initiative involves building 
on some of the work of the Special Trustee to 
overhaul the trust management systems. Earlier 
this year, the Special Trustee submitted his recom- 
mendations to Congress on improving the trust 



management and accounting systems. The De- 

Special Trustee's five-year, S167 million proposal 
and requested that the Special Trustee further 
develop the costs and benefits of his system 
proposals, along with alternatives for achieving 
the necessary system improvements. As a result, 
the Secretary and the Special Trustee have devel- 
oped a more limited approach that focuses specifi- 
cally on data cleanup, elimination of trust asset 
processing backlogs and revamping the trust 
management and accounting systems over the 
next three years. The Administration will con- 
tinue to seek funds in its annual budgets to carry 
out these efforts. 

The third component of this effort involves the 
problem of fractionated ownership of Indian 
lands. Past Federal law and policy left a legacy of 
thousands of individual parcels of land in Indian 
Country with scores or even hundreds of owners. 
This impedes the ability of the Department and 
the landowners to maintain the economic viability 
of the land, and adds massive complexity and 
expense to the trust management and accounting 
responsibilities of the federal government. On 
]\xne 18, 1997, the Administration submitted a 
legislative proposal to address this issue. If we 
hope to resolve the problems affecting the federal 
government's ability to discharge its trust fund 
responsibilities effectively, all three components of 
this plan must be implemented. 

Resolving claims of the past — the subject of this 
report — is extremely difficult and there is not one 
right way to do it. If these were simple and 
straightforward matters, they would have been 
resolved long ago. We are proposing what we 
believe to be a fair, judicious and efficient process 
for resolving Tribal trust hind claims, taking into 
account the fact that there is much supporting 
documentation that has not been found. 

Our overriding objective is to achieve fairness and 
justice with respect to disputes over Tribal trust 



Attachment A Part 1 to Boswell Declaration 



0816 



Case 1:06-cv-01897-JR Document 26-5 Filed 08/11/2007 Page10of15 



account balances. We are committed to doing the 
. best iob we^can, r.ecoEpj''*'^'^ *'b° 'i'T-iiia>i''Y?*y'^i ''""^ - 
current systems and the availability of records, to 
settle valid Tribal claims. The effort must be 
principled and undertaken in good faith, paying 
those to whom money is owed, with due regard to 
fiduciary obligations, while, at the same time, not 
providing a windfall where little or no reasonable 
likelihood of loss exists. Our proposal is consis- 
tent with these principles. 

Objectives for Settlement Proposal 

The following objectives guided the formulation 
of this proposal for a legislated settlement of 
Tribal trust fund claims; 

• acknowledge and respect tribal 
sovereignty; 

• achieve a settiement that is fair to both the 
Indian community and the general public; 

• achieve the most resource-efficient 
settlement of claims (in terms of 
conserving federal government and Tribal 
time, money, and staff, including 
attorneys' and expert witness fees); 

• encourage settlement by providing 
incentives to settle and disincentives to 
litigation; 

• use the most informal settlement processes 
available rather than litigation to 
encpurage Tribal participation; 

• obtain binding for the settlement without 
reducing appropriations for the OST and 
BIA budgets and Tribal programs; and 

• achieve agreement on account balances 
through September 30, 1992, or the date of 
settlement, as an agreed-upon starting 
point for the future. 



This report is a follow-up to an earlier report. 



^..u 



-.^^;t^c:A tr;/"''^— 



:,.-l5r;.-[ii,. sut^" 



lined proposed optior\s for settlement of disputes 
related to Tribal tnist funds. Since submission of 
that report, we have engaged in consultation with 
the Indian community on the proposals contained 
in the report, and Tribal leaders have offered 
invaluable advice and suggestions on ways to 
improve the options. 

The Nature of Trust Funds 



There are two broad categories of trust'fund 
accounts held by the govenunent for Indians. 
One t\'pe comprises some 300,000 Individual 
Indian Money (EM) accounts, each held for a 
single individual, or in some cases a Tribe, or as. a 
holding account for certain "special deposits." 
The JIM accounts are currentiy the subject of a 
class action lawsuit brought by IIM account 
holders against the United States, Cobell v. 
Babbitt. 1:96CV01285 RCL p.D.C), and are not 
co\'ered by the proposal in this report. The parties 
are working diligently to define a process by 
which those individual claims pertaining to EM 
accounts will be examined and adjudicated. 

The other type of accoimts — which are the 
subject of this report — comprise some 1,500 
Tribal trust fund accounts held for 338 Tribal 
account holders, rather than for individuals. The 
Tribal trust fund accounts contained assets in 
excess of $2.5 billion, as of August 1, 1997. Each 
year, more than $800 million in non-investment 
receipts, transfers and disbursements pass 
through these Tribal trust accounts. There are 
several types of Tribal tnist accounts, although 
most fall under the following three categories: 

• funds derived from trust resources such as 
timber, grazing, oil & gas (often designated 
Indian Money Proceeds of Labor); 



Attachment A Part 1 to B^swell Declaration 



0817 



Case 1:06-cv-01897-JR Document 26-5 Filed 08/11/2007 Page 11 of 15 



funds derived from awards of the Indian This proposal sets out a process for. resolvino- 

Claims Commission or other judgment claims arising from the Department's 

awarus (judgment runds); " "' management ot the Tribal trust nind accounts, 

from July 1972 through at least September 1992, 

funds derived from various legislation, and at the Tribes' option, for the period October 

including land and water claims 1992 through the date of settlement, 
settlements (settlement funds, also often 
called judgment funds). 



Attachment A Part 1 to Bos\S'ell Declaration 0818 



Case 1:06-cv-01897-JR Document26-5 Filed 08/1 1/2007 Pagei2of15 




2. BACKGROUND ON EFFORTS TO 
RESOLVE THE PROBLEMS 



Concern about the management of Tribal ixust 
iH-'n ds-has been lon2::'^*'c._^:V?'7-=^^^i:'^'".'";^.^-'r''^r-:"-^?'---' 
Accounting Office (GAO) — the investigative 
research arm of Congress — issxied reports as 
early as 1928 documenting weak accounting 
practices and other problems in BlA's trust fujid 
management. Prior to 1951, accounting activities 
were undertaken at each BIA Agency Office 
(typically located on Indian reservations), using 
handwritten ledgers and journals. In 1951, an 
accounting system designed and approved by 
GAO was installed in BIA Area (regional) Offices. 
All fund types — IIM as well as Tribal — were 
integrated in this system. GAO released reports 
in 1952 and 1955 describing management and 
systems concerns. 

Beginning in 1965, BIA began centralizing its 
accounting functions on a mainframe computer in 
Albuquerque, New Mexico. The conversion to the 
computer system was complete in 1967, ^though 
a duplicate manual set oi Tribal fund "control 
accounts" were maintained in Albuquerque until 
1987. A new automated accounting system was 
developed and implemented in 1968 and modi- 
fied in 1974. In 1982, GAO once again issued 
reports critical of the management systems. The 
Environment, Energy and Natural Resources 
Subcontmittee of the House Committee on Gov- 
ernment Operations encouraged a three-year 
investigation into the issue, leading to a report 
issued on April 22, 1992, entitled "Misplaced Trust: 
The Bureau ofhidian Affairs' Mismanagement of the 
Indian Trust Fund." The Special Trustee attributes 
many of today's problems to the failure to up- 
grade the systems adequately over the past 
twenty to thirty years. 

Congressional appropriators were concerned as 
well. In 1987, after a series of oversight reports by 
the GAO, a supplemental appropriations bill 
directed that trust fund accounts be reconciled 
and audited. Congress also prevented the 
outsourcing of trust fund services to a commercial 
bank vmtil the funds had been audited and recon- 



ciled. In 1988, 1989 and 1990, Congress again 
^ j:-.^^,h ^.i^^pT A _.._.v -_.._- i^.ecoi%ci:e Indian - 
trust fund accounts back to the earliest possible 
da^e. The FY 1990 appropriations language 
further required that "the results of such reconcili- 
ation [be] certified by an independent party as the 
most complete reconciliation of such funds as 
possible." 

Actions to Reconcile the Accounts 

The BIA b,eg2ILitsxecQnciliation of Tribal trust 
accounts in 1990. The BIA, the GAO, and the 
Department's Inspector General worked in con- 
junction with an ad hoc Tribal advisory group, 
later named the Intertribal Monitoring Association 
(ITMA), to develop a "request for proposal" for a 
reconciliation contract. In May 1991, the reconcili- 
ation project contract was awarded to a national 
accounting firm, Arthur Andersen LLP. 

The initial work, called Phase I, sought to deter- 
mine what records were available, what proce- 
dures would be necessary, and what the cost 
would be of a complete reconciliation for both 
Tribal and IIM accounts. It found that not all 
supporting documents could be located, but those 
that were found could be examined, and that 
some BIA trust policies, procedures, and systems 
had deficiencies. As a result, it was agreed 
through discussions involving the Department, 
the Office of Management and Budget (0MB), 
Congress, and ITMA, that a conventional financial 
audit was not likely to produce meaningful 
resiilts. 

In view of this, the Department, in consultation 
with 0MB and ITMA, began to look at alternative 
methodologies and approaches. The goal was to 
produce as accurate an accounting as practicable. 
Ultimately, methodological procedures were 
agreed upon by the Department, OMB and Tribal 
representatives, and were incorporated into the 
contract with Arthur Andersen. The procedures 
do not constitute an audit in accordance with 



Attachment A Part 1 to Bgswell Declaration 



0819 



Case 1 :06-cv-01897-JR Document 26-5 Filed 08/11/2007 Page 13 of 15 



generally accepted auditing standards; however, 
thev w^re deemed to be the best available ap- 
proach, given the constraints of the incomplete 
documentation. These procedures were used by- 
Arthur Andersen to reconcile the Tribal trust hand 
accounts for the period July 1, 1972 through 
September 30, 1992. 

Appropriation language directed that funds be 
"audited and reconciled to the earliest possible 
date." The reconciliation project went back as far 
as July 1, 1972, in order to focus on the time 
period that was deemed to likely be the most 
susceptible to problems or errors. July 1, 1972, is a 
critical date for several reasons. 

On Jiily 1, 1972, all Tribal Treasury appropriation 
accounts were consolidated into a single Treasury 
account (approximately 1,000 accounts were 
combined). Prior to this date. Treasury main- 
taij;"-:d separate accoimts for each Tribal trust 
fund, typically with separate accounts for princi- 
pal and interest. These dual sets of accounts 
would generally make it easier to detect differ- 
ences; for example, if Treasury received a cash 
receipt that was not posted by BIA it would be 
easy to isolate the difference — a variance would 
show up between the specific account on BIA's .r 
books and the specific account on Treasury's _. 
books. Such differences were not as easy to 
identify when the accounts were collapsed into 
one account. Rather, the siun of approximately 
1,000 accounts on BIA books would need to be 
compared to the one balance on Treasury's books, 
and if the totals were different, it could be neces- 
sary to review the activity in all 1,000 accounts to 
determine which individual account caused the 
variance. Nevertheless, consolidation occurred to 
alleviate the admiiustrative burden of Treasury 
maintaining a dual system of Tribal trust accounts. 

Additionally, in the year following July 1, 1972, 
Treasury discontinued calculating and posting 
semi-annual interest income to trust fund ac- 
counts. From 1928 to 1972, Treasury had com- 



puted and distributed interest on a semi-annual 
basis for funds residin<^ m Treasurvaccounts. BIA 
Offices deposited and posted interest earned from 
investment activity outside of Treasur>'. Begin- 
ning July 1, 1972, BIA was responsible for comput- 
ing and distributing the Treasury interest on 
uninvested hinds. For these reasor\s, July 1, 1972, 
was considered to be a logical starting point for 
the reconciliation. 

American Indian Trust Fund Manage- 
ment Reform Act of 1994 

In 1994, while the Arthur Andersen reconciliation 
efforts were ongoing. Congress passed the Ameri- 
can Indian Trust Fund Management Reform Act of 
1994, 25 U.S.C. §§ 4001-4061, which established 
the Office of the Special Trustee for American 
Indians. Under this legislation, the Special Trustee 
is responsible for oversight, reform, and coordina- 
tion of the policies, procedures, systerp.s and 
practices used by various Departmental agencies 
in managing Indian trust assets. The statute 
requires that the Secretary transmit to Congress a 
report that describes the methodology and results 
of the trust fund reconciliation, ir\cludes Tribal 
attestations as to disputed account balances, and 
outlines efforts the Secretary will imdertake to 
resolve such disputes. An initial report was 
submitted to Congress on May 31, 1996, and 
another on December 11, 1996,' with a commit- 
ment to provide this final report on the Secretary's 



^ Because most Tribes did not have sufficient time to 
review their reconciliation reports and submit 
attestations as to their account balances by the May 31 
deadline, the Secretary submitted an interim report 
describing the reconciliation procedures on May 31, 
and set a deadline of September 27, 1996, for 
submission of attestation responses. With the extension 
of the deadline for submitting attestation responses, the 
Secretary promised to submit a supplemental report to 
Congress, including proposed legislative options to 
address disputed account balances, later in the year. 
The options were discussed in the December 11, 1996, 
report. 



Attachment A Part 1 to Bo^well Declaration 



0820 



Case 1:06-cv-01897-JR Document 26-5 Filed 08/11/2007 Page14of15 



' pedfic recoirjnc- . " •'-■-:n2 li: 
Tribal account balances. 



■■"ro"""-']^"'^-" 



In accord with the Congressional mandate to have 
an independent certification of the Tribal trust 
fund reconciliation results, BIA awarded the 
certification contract to Coopers and Lybrand LLP 
in September 1993. However, due to a projected 
cost that far exceeded available resources, the 
Special Trustee, after consultation with GAO, 
OMB and Departmental officials, tenrunated the 
contract in October 1995, before the certification 
was completed. At the Special Trustee's request. 
Coopers and Lybrand provided a close-out letter 
summarizing the work performed prior to termi- 
nation. The letter stated that no conclusions could 
be drawn from the preliminary information 
reported because the certification work was not 
completed. Later, Arthijr Anderseryr.:Aestigated 
and cleared all Coopers and Lybrands comments 
on the prelirrunary reports. 

The Reconciliation Project Results 

In January 1996, the Department released Project 
reports, along with electronic copies of supporting 
Project workpapers to Tribal trust fund accoiint 
holders summarizing the results of the Project. 
The report also requested that Tribes submit 
attestations as to whether they accepted or dis- 
puted their account balances. The agreed-upon 
procedures used in the reconciliation were in- 
tended to accomplish the following: 

• verify that non-investment financial 
transactions posted to the BIA's official 
accounting records are in agreement with 
available supporting financial source 
documents (the "basic reconciliation"); 

• assess the accuracy of investment income 
posted to Tribal accounts; 

• recalculate the U.S. Treasury interest 
earnings; 



-' ic'^uii'ciic''iji>rgt;iierai kager Dalances with 
U.S. Treasury balances; 

• verify that financial hransactions posted to 
BIA accounting records are in agreement 
with the originating lease or sale 
agreements, pemuts, or contract terms (not 
completed for all transactions); and 

• determine the timeliness of the deposit of 

As of December 1995, Arthur Andersen had 
examined S17.7 billion in non-investment transac- 
tions (251,432 transactions) for the 20-year period 
from 1972 to 1992 in the basic reconciliation. 
Of that amount, 86 percent of the transactions 
(totaling S15.3 billion) were reconciled; that is, 
financial records were located to support the 
accuracy of the transactions as reflected on BL\'s ~ 
general ledger. Of the $15.3 billion in reconciled . 
transacrions, an error rate of about .01 percent was 
reported. Errors included both overstatements 
and understatements of Tribal account balances 
by the government, as well as payments made to 
the wrong account or Tribe. The 14 percent of 
transactions (32,901 transactions) that were not 
reconciled totaled $2.4 billion, and included the 
following categories of transactions:^ 

51. 1 billion in receipts (payments to accounts); 

5808 million in disbursements (drawdowns from 
Tribal accounts); 

5479 million in transfers between accovmts of the 
same Tribe. 



^ The agreed-upon procedures are described in detail in 
the Special Tmstee's May 1996 report to Congress. 

■' All values for unreconciled transactions are, rounded 
to the nearest million, and expressed in terms of 
absolute dollars, which means that the positive and 
negative values of the transactions are disregarded. 



Attachment A Part 1 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-5 Filed 08/11/2007 Page15of15 



As describod more fully below, OST has cQntimied 
Its efforts to reconcile the outstanding S2.4 billion 
of non-investment transactions. As a result of 
those efforts,the unreconciled transaction have 
been reduced frona $2.4 billion to $1.97 billion. 

Tribes Address the Reconciliation 

The Project reconciliation procedures and the 
proposed adjustments to account balances are 
detailed in the Project report and were explained 
to the Tribal account holders at a national meeting 
on February 14 and 15, 1996, in Albuquerque, 
New Mexico. More detailed individual consulta- 
tion with OST was provided to Tribal account 
holders at a series of regional meetings held 
through July 1996. Upon the conclusion of the 
meetings, in August 1996, the Special Trustee sent 
a second request for the Tribes to submit attesta- 
ticfi-^; as to acceptance or dispute of their account 
balances on or before September 27, 1996. 

As of May 1997, the OST had received attestation 
responses from 92 Tribal trust fund account 
holders. 41 Tribal account holders accepted the 
accoxint balances as reflected in the reconciliation 
reports, and 51 account holders disputed the 
balance. 47 account holders requested additional 
time for their response. 171 account holders filed 
no attestation response. Among the reasons given 
by those account holders that disputed their 
account balances were inadequate reconciliation 
-procedures, that they needed additional time, and 
that the records were inadequate. Other more 
specific comments were also made that do not fall 
into one of these frequently stated categories. 

The Limitations of the Reconciliation 

As noted, despite five years of effort and the 
expenditure of $21 million, the Project provides a 
less than complete accounting of the state of the 
Tribal trust funds. The inadequacy of the trust 
management systems, policies, procedures and 
practices, the condition and availability of the 



trust records, and fur>Hing constraints all contr.h- 
uted to the limitations of the Project. 

The Project did identify some specific errors 
(known errors) which resulted in both understate- 
ments and overstatements of Tribal trust fund 
account balances. Those errors should be 
corrected. The most difficult issues, however, 
relate to the unreconciled transactions where all 
required records could not be located to support 
$1.97 billion of non-investment transactions for 
the 20-year period of the Project, and to those 
transactions outside the scope and time period 
covered by the Project. 

Of the $1.97 billion in unreconciled transactions, 
about $1.1 billion are transactions involving 
receipt of funds by the government on behalf of a 
Tribal account froin third parties, S363 million are 
disbursements and $479 million involve transfers 
among different accounts of the same Tribe." 



* It is highly unlikely that the $479 million in transfers 
and approximately $117 million of the unreconciled 
disbursements actually resulted in any losses to Tribes. 
Of the disbursements, some $60 million are positive 
disbursements (i.e., receipts), where even had there 
been an error, it would have benefitted the Tribe. An 
additional $22 million was for attorney and expert 
witness fees and $35.8 rrullion were disbursements of 
settlement funds to Alaska Native corporations, and it 
is reasonable to presume that these entities would have 
filed claims had the payments not been made. 
Likewise, where transfers among a Tribe's accounts 
were posted to the general ledger, it is likely that the 
Tribe had use of the funds, even if they were posted to 
the wrong account of the Tribe. Nevertheless, because 
the supporting documentation could not be located for 
the transactions to be reconciled, for purposes of 
settlement they wiU be treated as other unreconciled 
transactions and compensated through the process 
described later in this report. 



Attachment A Part 1 to Boswell Declaration 



0X99 



Case 1 :06-cv-01 897-JR Document 26-6 Filed 08/1 1/2007 Page 1 of 1 8 



ATTACHMENT A 



TO BOSWELL 



DECLARATION 



PART 2 



Case 1:06-cv-01897-JR Document 26-6 Filed 08/1 1/2007 Page 2 of 18 




3. THE DEPARTMENT'S DECEMBER 
REPORT ON SETTLEMENT OPTIONS 



it. 



The Department's December report categorized 
-potential Jr^....^±^.:^ :.v.u'.::.^. v^P^^ ^yy^^. 
or 3) and presented options for resolving each 
type of claim. As a result of our consultair.ori wl 
Tribes, the proposals contained in this report are 
significantly different from the setdement options 
described in the December report. As back- 
ground, a brief description of the options con- 
tained in the December report, as well as Tribal 
comments on those options, follows: 

Type 1 Claims 

Type 1 claims included those claims based on 
transactions in which an error was identified in 
the Reconciliation Project, or kno'.vn errors. The 
options to address Type 1 claims outlined in the 
December report were fairly straightforward, 
because it is the Department's view that known 
errors due -to Tribes must be pai-ur -The options 
focused on how to pay them. Some of the known 
errors involved transactions where a Tribe's 
account balances were understated; others in- 
volved overstatements of Tribal account balances. 
In fact, more errors involved overstatements of 
Tribes' balances ($14 million plus interest) than 
imderstatement ($13.1 million plus interest). 
Therefore, a total of slightly more than $27 million 
(absolute value) of known errors was identified 
for the entire Project. 

Type 1 claims also included interest due to a "lag 
time" between when fimds were collected by the 
~BIA and when they were deposited iifanaccouht"" 
and began to earn interest. Lag time also occurred 
during the time between when money was depos- 
ited by the Minerals Management Service (MMS) 
and when it was actually credited to the Tribal 
accounts by BIA. Sometimes, that "lag time" 
period was longer than it reasonably should have 
been. We assumed an appropriate period would 
be no longer than six days for the first type of lag 
time and that interest be paid beginning inmiedi- 
ately when funds are deposited by MMS for the 
second type. The lost interest calculated as a 



result of unreasonable "lag time " amounts to 
"dDoui\:rt'iiauiui\'f^(357d'iialhon is attributed to olA 
deposits and $.5 million is attributable to MMS 
deposits). 

Anotiier category of Type 1 claims is called 
undocumented "roll forward" amounts. An 
undocumented roll forward amoiant occurs when 
the account balance on the last day of an account- 
ing period (usually a year) was not the same as 
the account balance on the first day of the next 
aeee-cm-tinrg-periGd. Sometimes the balances went 
up, sometimes the balances went down. Exclud- 
ing roll forward differences that netted to zero 
among a single Tribe's accoimts, there were $17.5 
million in unexplained decreases (no netting) at 
the conclusion of the Project. This amount has 
since been reduced to $902, as a result of further 
OST and Arthur Andersen work to research and 
document such decreases. 

The optioris identified in the December report for 
resolving Type 1 claims provided that the govern- 
ment would pay a Tribe where a known error 
resulted in an understatement of the Tribe's 
account balance, and would net out and forgive 
amounts due where the Tribe's account balance 
was overstated by the government. In addition, 
the options discussed whether to repay the Tribes 
with simple interest or compound interest at the 
so-called Tribal benchmark rate, which is the 
average annual yield of invested Tribal bust funds 
for the period. This rate tends to be skewe d to the 
high side because of one large account holder's 
long-term investinents. The December report 
suggested repayment with simple interest. 

The optioris also addressed whether all overstate- 
ments to the accounts should be forgiven and all 
understatements restored, or whether overstate- 
ments should be netted against understatements 
at the "Tribal" level (all overstatements and 
understatements to a Tribe's accounts netted 
against each other notwithstanding whether the 
errors occurred in the same or different accounts 



Attachment A Part 2 to Boswell Declaration 



in 



082^ 



Case 1:06-cv-01897-JR Document 26-6 Filed 08/11/2007 Page 3 of 18 



of that Tribe) or netted at the account level 
(netting of overstatements and xinderstatements 
in eacn account oi me iriDe). fhe repoffproposed 
netting at the Tribal level, with forgiveness of any 
net overstateiTient. 

Type 2 Claims 

Type 2 claims involved circumstances in which a 
Tribe had additional documentation relating to 
the Tribal account balance as reconciled that could 
evidence a previously unidentified error. In 
addition, T}^e 2 claims included so-caiied 
"passed adjustments," where BIA and Arthur 
Andersen disagreed on the adequacy of documen- 
tation to reconcile a transaction. There were 
$10,954,684 (absolute value) in "passed" adjust- 
ments, of which $4.3 million (absolute value) was • 
subsequently reviewed and cleared by Arthur 
Andersen. The December report suggested an 
informal iiegotiation process between the Tribe 
and the OST under the auspices of a mediator, in 
the event there was a disagreement about recon- 
ciling a transaction based on the additional Tribal 
documentation. If mediation was unsuccessful, 
the transaction would be resolved as a Type 3 
claim. 

Type 3 and Other Claims Outside the 
Scope of the Project 

Type 3 claims represented those arising from the 
$2.4 billion in unreconciled transactions initially 
identified in the Project. Comments also were 



the one hand, guidelines governing the Project 
indicated that a transaction would not be consid- 
eied reconciled without cenam Uocumentation to 
verify that funds were handled as reflected in the 
general ledger. On the other hand, there was no 
indication during the course of the Project that 
Tribal funds had been intentionally misposted, 
misappropriated, or misdirected, although the 
Project did not specifically include procedures to 
examine fraud. And, as noted above, for the 86 
percent of non-investment transactions reconciled 
in the basic reconciliation procedures of the 
Project, the error rate was low — .01 percent. 

To resolve potential claims relating to 
unreconciled transactions, the Special Trustee's 
Advisory Board proposed a payment of $300 
million to be distributed proportionately to all 
Tribal account holders, based on the product of 
the percentage of the Tribe's unreconciled dis- 
bursements plus interest and the total of^.]l- 
unreconciled disbursements plus interest. In 
addition, the Advisory Board proposed a general 
settlement amount of $300 million that would be 
used as partial capital for a proposed Develop- 
ment Bar\k for American Indians, in further 
settlement of claims arising from the unreconciled 
transactions. Ttie Department's December report 
solicited views on whether Tribes would support 
a global settlement, such as a Development Bank, 
some other Tribal economic development initia- 
tive, or a fractionated ownership land acquisition 
fund, or whether Tribes preferred individual 
settlements with each Tribe. 



sought regarding possible approaches for resolv- 
ing other claims, including those outside the time 
frame and scope of transactions considered in the 
Project. These include, for example, not only 
pre-1972 claims relating to management and 
accounting of trust funds, but also those involving 
the Department's management of the underlying 
trust assets in any time period. 

Developing an equitable process for resolving 
potential Type 3 claims was not a simple task. On 



Tribal Comments on the Options 

A series of meetings with affected Tribes was held 
after the Department submitted its December 
report to Congress. Tribes also were given 60 days 
to submit written cominents. All of the comments 
— oral and written — were carefully analyzed 
and considered in the preparation of our current 
proposal. A total of 35 different Tribes participa- 
ted in the four regional hearings held in Portland, 



Attachment A Part 2 to Boswell Declaration 

11 



0824 



Case 1:06-cv-01897-JR Document 26-6 Filed 08/11/2007 Page 4 of 18 



Oregon (January 6, 1997); Denver, Colorado 

1997); and Washington, D.C. Qanuary 24, 1997). 
Transcripts of the hearings were maintained. In 
addition., written comnaents were received from 
15 Tribes by the closing date of February 12, 1997. 

The consultation process was provided as an 
opportunity for Tribes to comment on the specific 
optior\s outlined, but the comments went beyond 
the scope of those options. Kather than summa- 
rizing the comments on the specific options here, 
we have attempted to address many of the com- 
ments in describing our settlement proposal and 
how it was changed from the December report 
options. In addition, we maintained transcripts of 
the consultation hearings and those transcripts 
and the written conunents are available for public 
inspection from the BIA. Some Tribes expressed 
the following, more generic coj;ca.ms, which serve 
as a useful backdrop for the Tribal comments on 
the options themseh'es. 

Some of the Tribes, both in comments at the 
meetings and in formal written comments, ques- 
tioned the nature and scope of the Project and said 
it was not a reliable foundation on which to base a 
settlement. They pointed to the fact that its 



examination of accounts was limited to 1972 
cltivvi^Ai -V^i.—c,uttis~j.'Ciiueu out that some ' ~~~=^ 
reconciliation tasks (investment analysis) were not 
perforx'iied between fiscal years 1972 and 1977, 
arguing that the Project amounted to a study of 
15 years, rather than 20 years. They also asserted 
that they had had difficulties accessing the Arthur 
Andersen work papers. A number of Tribes 
commented that the Special Trustee had recom- 
mended that the Tribes not accept the Project 
findings. While recognizing the limitations of the 
&r9js£t— v.'e-describe the Department's reasons for 
relying on the reconciliation results in our discus- 
sion of the settlement proposal following this 
section. 

A number of Tribes also fovmd fault with the 
limited time given Tribes to comment between 
receipt of the options paper in December 1996 and 
the four regional hearings in January and the 
deadline for written comments in mid-February 
1997. We understand that Tribes may have de- 
sired more than 60 days to review and comment 
on our proposed options; however, we believe 
that there will be further opportunity for Tribal 
input as we work with Congress to reach a final 
resolution of this issue. 



Attachment A Part 2 to Boswell Declaration 

12 



0825 



Case 1:06-cv-01897-JR Document 26-6 Filed 08/1 1/2007 Page 5 of 18 




4. THE SETTLEMENT PROPOSAL 



Scope of the Settlement 

mere v/as significant discussion during the 
consultation process about the period that should 
be covered by a settlement. Some suggested that 
the settlement should cover all Tribal trust fund 
accounting claims arising during the period 1946 
to the date of settlement, since any claims preced- 
ing 1946 were extinguished by the Indian Claims 
Commission Act. Others argued that claims from 
any period that the Department managed trust 
accounts should be covered, even as far back as 
150 years. There also is a credible argtxment that 
1984 to the date of settlement may be the appro- 
priate period, based on the Tucker Act's general 
six-year statute of limitations for claims against 
the goverrunent. The basis for this argument is 
the annual Appropriations Acts for fiscal years 
1991 through 1997, which toll the statute of 
limitations on any claim concerning losses to or 
mismarti^ement of trust funds until the affected 
tribe or individual Indian has been furnished with 
an accounting of such fimds. Accordingly, the 
Appropriations language preserves all existing 
claims as of its enactment in 1990, which would 
include only those six years old or less — in other 
words, daims from 1984 forward. 

After considering all these arguments, the pro- 
posed settlement covers at least the period July 1, 
1972, through September 30, 1992, and at Tribes' 
option, through the date of settlement. We have 
chosen this period for several practical and policy 
reasons. First, we believe there is little or no legal 
basis to include claims arising prior to 1946. The 
Indian Claims Commission statute quite clearly 
specified that the Commission proceedings were 
to be the process by which all claims arising prior 
to 1946, whether in law or equity or based upon 
fair and honorable dealings, would be settled. 
That Tribes tmderstood this included claims based 
on trust fund manageiAent is demonstrated by the 



fact that a sigiuficant number of claims involvin 



federal government management of trust funds 
were heard and decided b-v^he Comrrdssion. 

With respect to the possibility of using either 1946 
or 1984 as the cutoff points, there are also credible 
statute of limitations arguments (although the 
argument for the 1984 date is more persuasive). 
Nevertheless, we believe the 1984 date would 
produce a harsh resiolt. In addition, the Commit- 
tee report language accompanying the Appropria- 
tions Acts specifies that the language is intended 
to preserve claims for discrepancies uncovered 
during the Reconciliation Project (which covered 
1972 to 1992). Most important, we have devel- 
oped a significant amount of data regarding the 
Tribal accounts and potential claims from July 1, 
1972 through September 30, 1992, and have been 
perfomving daily reconciliation of accounts since 
that time. In contrast, we have accumulated no 
data about Tribal accounts for the 1946-1972 
period. At this juncture any effort to quantify' 
discrepancies and possible losses for the pre-1972 
period would be little more than conjecture. 

Moreover, the July 1, 1972 date is a natural demar- 
cation because it represents the date on which 
there was a fundamental change in the manner in 
which trust funds were managed. As previously 
noted, prior to 1972, the Department of the 
Treasury had Tribal accounts listed within its 
systems, although BIA had some role in reporting 
the amounts to be placed in the accoimts. It was 
not imtil 1972 that BIA took on exclusive manage- 
ment responsibility for Tribal trust funds (with 
one combined account for all Tribes at Treasury). 

Finally, this proposal is in the form of a legislated 
settlement. The July 1, 1972 to September 30, 1992 
period, with optional settlement of the post-1992 
period, is supported by the exter\sive analysis 
performed in the reconciliation and the internal 
OTFM reconciliation procedures for post-1992, 
and is a middle ground between the other alterna- 



Attachment A Part 2 to Boswell Declaration 

13 



0826 



Case 1:06-cv-01897-JR Document 26-6 Filed 08/11/2007 Page 6 of 18 



kh^-wA^fc^v^k 



• 



tives, none of which is -without legal dispute. 
Certataly, i'r;l,> jy-\i^^^\.l .^\y.^^A;^zd av...L*.. 
Coiigress has the discretion to define the period 
for which it will agree to settle trust funds clain-^s 
or even allow the courts to entertain litigation. 
Should Congress determine that pre-july 1, 1972 
claims should be settled, however, the Depart- 
ment could be directed to evaluate possible 
approaches to determining whether losses were 
suffered as a resiilt of the management of the 
Tribal accounts. One approach covdd be through 
an extension of the reconciliation process. We are 
skeptical, however, that such an effort would 
produce satisfactory results. There is a sigiuficant 
likelihood that many of the relevant doctiments, 
more tlian 25 years old, will not be found. More- 
over, the effort would likely be very costly, given 
that the reconciliation for the July 1972 - Septepa- 
ber 1992 period took five years and cost $21 
million. .*-^v-- 

Alternatively, there may be statistical or sampling 
methods that could be used to estimate potential 
losses. Although it is not yet clear whether suffi- 
cient information can be efficientiy gathered to 
develop statistically reliable estimates, if an 
approach could be successfully developed, it 
would result at best in a rough estimate of any 
losses. In short, setting aside the uncertainty 
about whether the statute of limitations would bar 
such claims, the Department does not now recom- 
mend a settlement process for years preceding 
July 1, 1972, because it has virtually no data 
relating to transactions in that period. 

Global Settlement 

There has been cimple debate about the prudence 
of attempting to construct a "global settlement" 
that would resolve the universe of all Tribal clain\s 
through some singular, programmatic action. One 
global settlement suggestion is the Special 
Trustee's proposal that the settlement proceeds 
partially fund an Indian Development Bank, with 
some $600 million in capitalization, to finance 



Tribal projects. Without endorsing the concept of 
a ^iwi^Ui cciiiCi-i'.Cilt approau.'i, i;he Decembei 1^^-.... 
sought comments from Tribes on their interest in 
such an approach and identified several possible 
alternatives in addition to a development bank, 
including a general development fund and a fund 
for Tribes to purchase fractionated interests in 
land. The December report noted that in order to 
be viable, a large portion of Tribes would have to 
agree to participate in a global settlement. There 
also would have to be consensus on what the 
-glsba-l-ss-ttiement mechanism would be and what 
each Tribe's entitlement and participation would 
be. • 

Based on comments received during the consulta- 
tions with Tribes, the Department does not believe 
that the global settlement approach is workable or 
desirable. Tribes generally appeared to favor 
govemment-to-govemment negotiations which 
recognize the individual circvimstances of each 
Tribe and its claims against the federal govern- 
ment. There appeared to be little consensus on 
what type of global settlement mechanism would 
be appropriate. In particular, there did not appear 
to be broad-based support for a development 
bank, if it were to be ftxnded with money due to 
individual Tribes. Because there was no consen- 
sus on whether a global settlement approach 
would be appropriate and what form it should 
take, and because Tribes generally favored an 
approach recognizing their individual circum- 
stances, this proposal focuses on a process to 
make settiement payments directly to Tribes. 
Those payments would, in part, reflect the value 
of each Tribe's actual claims and would allow 
Tribes to use their settlement funds as each deems 
appropriate. 

Overview of the Settlement Proposal 

The Department's proposal is designed to provide 
an opportunity for Tribes to settle all of their 
Tribal trust fund accounting claims with the 
goven\ment for the period July 1, 1972 through 



Attachment A Part 2 to Boswell Declaration 



Id 



0827 



Case 1:06-cv-01897-JR Document 26-6 Filed 08/11/2007 Page 7 of 18 



• 



September 30, 1992, and potentially through the 
date of settlement.^ The eovemment would 
report to Tribes all known errors, and would 
credit Tribes' accounts in the amount of those 
known errors due Tribes on a net basis, with 
compound interest, as soon as possible after the 
results of the additional reconciUation work have 
been presented to the Tribes for their review and 
consideration, and funds are appropriated. The 
government would credit known errors up front, 
whether or not a Tribe accepts the government's 
settlement offer for any other claims. 

After crediting the known error amounts to 
Tribes' accounts, the proposal entails a two-stage 
settlement opportunity for resolving accounting 
clainr\s other than those relating to known errors. 
In stage one, the government would offer each 
Tribe the opportimity to settle claims immediately 
for a specific sum based on a formula that takes 
into accotmt'-ur-e particiolar characteristics of the 
Tribe's accounts. If the Tribe accepts the offer, the 
settlement would be paid according to the 
formula and all covered claims against the 
government would be extinguished. If the Tribe 
does not accept the offer, it would be withdrawn 
and stage one would be concluded. 

In stage two. Tribes would have the opportunity 
to engage in goverrunent-to-govenunent 
settlement negotiations with a mediator. The 
mediation process would be non-binding. As part 
of this process, there would be a limited 
opportunity to obtain additional data or 
undertake additional analysis to the extent it 
would be constructive in reaching a satisfactory 
resolution of claims. This aspect of the proposal is 
a fundamental change from the December report, 
and is designed to respond to the requests of the 
Tribes to respect the sovereignty and individual 
circumstances of each Tribe in settling their 
claims. If the mediation process does not 
successfully resolve the Tribe's claims against the 
government, a Tribe could file a claim in the U.S. 
Court of Federal Claims. 



Additional Reconciliation 

Since completion of the Project, the Department, 
through the firm of Chavarria, Dunne & Lamey 
LLC, supported by OST staff, has continued to 
search for additional documentation to reconcile 
more of the $2.4 billion in unreconciled non- 
investment transactions. That work has focused 
solely on disbursement transactions. Employing 
the same agreed-upon procedures used in the 
Project, as of September 30, 1997, OST has 
reconciled an additional $445 million or 55 percent 
of previously unreconciled disbursements, thereby 
reducing the tmreconciled trar\saction from S2.4 
billion to $1.97 billion. The results of this 
additional reconciliation work will be presented to 
the Tribes for their review and consideration in the 
near future. 

In addition to settlement of claiins based on 
further research of transactions during the FrojeU£~ 
period of July 1, 1972 - September 30, 1992, the 
proposal is intended to cover, at the Tribe's option, 
any claims arising since September 30, 1992, 
through the date of settlement, based on the 
ongoing internal reconciliation being performed 
by OST. For each year since FY 1992, OST has 
been perforaning various internal cash and 
investment reconciliation procedures and 
providing some form of reports on Tribal trust 
investments- These procedures, for the periods, 
October 1, 1992 to March 31, 1995, and April 1, 
1995 to present, are as follows: 



^ For purposes of the settlement, accounting claims 
would include claims relating to the govemments's 
management and accounting of trust funds from the 
point of their collection though disbursement, 
including collection of the appropriate amounts vinder 
lease, permit or sale agreements or other contracts, 
proper recording of transactions, timely collection of 
revenues, appropriate investments and proper 
disbursements. The settlement process would not 
address claims related to management of the 
underlying trusts assets because the Project was 
focused on addressing accounting issues, not resource 
management issues. 



Attachment A Part 2 to Boswell Declaration 

15 



0828 



Case 1 :06-cv-01 897-JR Document 26-6 Filed 08/1 1/2007 Page 8 of 1 8 



From October 1, 1992 to March 31, 1995: 



• Tribal Trust cash receipts and cash 
disbursements were processed arid 
confirmed by the U.S. Treasury and were 
reconciled to Tribal Trust cash transactions 
posted to the OTFM Trust Funds 
Management System (TFMS). 

• Tribal Trust TFMS investment balances 
were reconciled to a Moneymax subsidiary 
investment ledger. 

• Periodically, then monthly, custodian 
investment statements were reconciled to 
the Moneymax subsidiary system (at Par 
value). 

• MMS oil and gas receipts information was 
faxed daily from MMS^io OTFM (for 
investment purposes) and was verified to 
intergovernmental transfer documents 
known as Voucher and Schedule of 
Withdrawal and Credits (SF-1081s). 

From April 1, 1995 to present: 

• Tribal Trust Funds cash receipts and cash 
disbtirsements have been processed and 
confirmed by the U.S. Treasury and have 
been reconciled daily and monthly to 
Tribal Trust Funds cash transactions 
posted to the Omnitrust System. 

• Investments have been reconciled daily to 
the Omnitrust System and have been 
reconciled monthly to custodial account 
statements (at Par value). 

• MMS oil and gas receipts information has 
been faxed daily from MMS to OTFM (for 
investment purposes) and has been 
verified to respective SF-1081s. 



The reconciliatioris to the U.S. Treasury suggest 
i:;cst uitirc jiaVuceii all accoonting and repomilg'vi 
all OTFM (trust) transactions, thereby mitigating 
dijcicpdAcy and loss concerns after September 30, 
1992. 

Some of the largest proposed adjustments for the 
U\'enty-year reconciliation period resulted from 
errors in investment income posted to Tribal 
accounts, recalculation of U.S. Treasury interest 
earnings, and differences between general ledger 
tra-r.sactions-versus U.S. Treasury transactions. 
Procedures implemented after September 30, 1992, 
as described above, are considered adequate to 
ensure that these errors do not reoccur. In addi- 
tion, the group of errors referred to as undocu- 
mented "roll forward" amounts also have been 
eliminated by the procedures and systems imple- 
mented after FY 1992. 

The post-FY 1992 procedures do not address the 
circumstances that result in unacceptable lag 
times (the time between when the Uruted States 
received payment and when the payment was 
deposited in a Tribal account amd began earning 
interest), however, so it may be prestuned that 
post-FY 1992 errors due to excessive lag times wUl 
be consistent with those identified by the Recon- 
ciliation Project for the July 1972 to September 
1992 time period. Based on these procedures and 
account information, the Department will formu- 
late a settlement proposal to provide Tribes the 
opportunity to resolve all accounting claims 
through the date of settlement. 

Settlement of Known Errors 

After the initial presentation to the Tribes of the 
additional reconciliation information, the first step 
of the proposed settlement process would be for 
the government to compensate Tribes for losses 
associated with errors it discovered during the 
Project, and losses identified as a result of the 
additional reconciliation work (identified as 
"known errors" or Type 1 claims in the December 



Attachment A Part 2 to Boswell Declaration 



0829 



Case 1:06-cv-01897-JR Document 26-6 Filed 08/11/2007 Page 9 of 18 



report). Compensation would include principal 
plus interest as described below. Known errors 
would be paia as soon as possible, regardless di a 
Tribe's willingness to accept the proposed settle- 
ment of any other claims based on remaining 
unreconciled transactioris. 

As discussed above, there are three types of claims 
relating to known errors. First, in the basic recon- 
ciliation portion of the Project, approximately 
$1.87 million in non-investment transactions 
(excluding interest) were found to be in error — 
an error rate of about .01 percent.* An additional 
$25.2 million (absolute value) in proposed adjust- 
ments were identified in the entire Project, which, 
in addition to the basic reconciliation, included 
the assessment of the accuracy of investment 
income posted to Tribal accounts; recalculation of 
U.S. Treasury interest earnings; reconciliation of 
general ledger transactions with U.S. Treasury 
transactions; v-i.iiication that financial transac- 
tions posted to the accounting records were in 
agreement with the originating lease or sale 
agreements, permits, or contract terms; and a 
determination of the timeliness of the deposit of 
receipts. All such known errors identified in the 
Project, as well as those identified in subsequent 
research efforts, due to Tribes would be paid. 

Second, there are Tribal accounts which may be 
due interest because of imacceptable "lag times" 
— the time between when the United States 
received payment and when the payment was 
deposited in a Tribal account and began earning 
interest. Because of the remote locations of many 
BIA agency offices, and the fact that electroruc 
hands transfer was not prevalent during much of 
the July 1972 to September 1992 period, we be- 
lieve the government is entitled to a coramercially 
reasonable time to post funds to an interest- 
earning account. Accordingly, we propose to 
compensate for interest that should have begvm to 
accrue six days after funds were paid to the BIA. 
However, with respect to ftmds deposited by 
MMS in the Treasury, interest would be paid from 



the date of deposit. Interest owed to the Tribes as 
a resvilt of lag times is estimated to be about $4 
million . 

The third type of known errors involves so-called 
undocumented "roll forward" amounts. These 
amounts resulted from end-of-accotmting period 
account balances in BlA's general ledger that did 
not equal the balance (whether higher or lower) 
recorded in the general ledger at the beginning of 
the subsequent accounting period. The December 
report identified $26.1 million in principal in cases 
where an account balance increased and $17.5 
million in principal where a Tribe's accoimt 
balance decreased. With respect to instances 
where accovmt balances increased, we proposed 
that the government "forgive" any such amounts, 
without performing furiiier research to explain the 
increase. That recommendation has not changed. 
With respect to decreases, the December report 
stated that OST was continuing its efforts to . ■"i 
research and document roll forward adjustments 
where a Tribe's balance decreased from one 
accounting period to the next. These efforts have 
continued and the results have been reviewed by 
Arthur Andersen. As a result of that effort, there 
remains only $902 of undocumented roll forward 
adjustments where account balances decreased. 
The Department proposes that any remaining 
tmdocumented roll forward amounts should be 
paid, subject to netting against any other cimounts 
owed by the Tribe, as described below. 

Rate of Interest 

The December report recommended that for 
settlement. Tribes be paid simple interest at a 
Tribal benchmark rate, which is defined as the 



* The $1.87 milHon does not include adjustments of less 
than $1,000 that were accepted without further 
research. These are referred to as "scoped adjustments" 
and total $83,417.00 (absolute value). These scoped 
adjustments would also be considered known errors 
and paid. 



Attachment A Part 2 to Boswell Declaration 

17 



0830 



Case 1:06-cv-01897-JR Document 26-6 Filed 08/11/2007 PagelOofIB 



average annual yield on invested Tribal trust 
funds, vvime uio geutriai practice in mlganon iS " ' 
for interest to be paid at a rate established by 
statute for funds that are improperly disbursed by 
the federal govemnient, we felt that the Tribal 
benchmark rate, which generally would be more 
generous than the statutory rate, more closely 
approximates what Tribes would have earned on 
their investments. This higher rate also is in- 
tended to serve as an incentive to settle rather 
than litigate. When OTFM converted to the 
OMNI Trust System in fiscal year 1995, it began - 
using an average Five Year Treasury rate in heu of 
the Tribal benchmark rate. 

There was considerable opposition among Tribes 
in the consultation to the payment of simple 
rather than compound interest. The December 
report indicated that the government is required 
to pay only simple intcK -i en improperly 
disbursed funds in a litigation context. Tribes 
persuasively argued during consultation, 
however, that they would have earned compound 
interest had errors not been made. Moreover, 
since the Department's objective is to provide an 
additional incentive for settlement, compovmd 
interest is more appropriate. The Department 
agrees with these comments, and now proposes 
that in paying known errors, interest be annually 
compounded and paid at the Tribal benchmark 
rate through fiscal year 1994, and the average 
Five Year Treasury rate for years beginrung in 
fiscal year 1995. 

Netting and Forgiveness 

The Project results indicated that, of the errors 
reported, some were to the detriment of the Tribes 
($13.1 million) while others were to the benefit of 
the Tribe ($14 naillion). Thus, if all errors were 
simply to be paid without netting the positive and 
negative errors against each other and without 
forgiveness. Tribes, in the aggregate, would owe 
the government more than the government would 
owe Tribes. 



The Department concluded tliat Tribes should not 
De required ro pay money to the goverruAcni iur 
errors that accrued to the Tribes' benefit, because 
we thought it would be inequitable and unduly 
burdensome to do so, given the government's 
responsibility for the errors. At the same time, we 
wanted to avoid the potential windfall that could 
occur if the government paid Tribes for its errors 
but Tribes would not have to pay the government 
for errors to its benefit. Accordingly, some form of 
netting and forgiveness of errors due to and due 
from a Tribe was considered appropriate. There 
were two principal netting options 'considered: 
(1) errors (including interest) within each account 
owned by a Tribe would be netted against each 
other, and payments would be made to each 
account with a net balance due (nettimg to the 
"account level"); or (2) errors (including interest) 
occurring in all accounts of a Tribe would be 
netted against each other and one aggregate 
payment of any net amount due would be made 
to the Tribe, to be allocated among accounts as 
each Tribe deemed appropriate (netting to the 
"Tribal level"). The two methodologies produce 
different aggregate outcomes because of the 
associated concept of "forgiveness," whereby the 
government would forgive any amounts due from 
a Tribe to the government after netting. 

The December report recommended netting at the 
Tribal level because forgiving errors representing 
amounts owed by Tribes to the government while 
paying for errors representing amounts owed by 
the government to the Tribes would resvdt in what 
could be considered a windfall for the Tribes. 
Netting of errors to the Tribal level would prevent 
that windfall. A Tribal-level netting and forgive- 
ness policy would result in the government 
paying approximately $3.5 million in principal 
and $6.6 million in compound interest, and forgiv- 
ing approximately $4.4 million in principal and 
$3.7 million in compound interest. Netting at the 
accotint level, rather than the Tribal level, is 
estimated to increase the cost another $15.7 mil- 
lion, including principal and compound interest. 



Attachment A Part 2 to Boswell Declaration 

1R 



0831 



Case 1:06-cv-01897-JR Document 26-6 Filed 08/11/2007 Page 11 of 18 



No netting at all, coupled with a forgiveness 
pnlicv, would add $21.2 miJb'on in principal and 
compound interest costs. 

Some Tribes were highly critical of the netting/ 
forgiveness proposal. They argued that because 
the Project covered only a 20-year period, netting 
within this limited tinie frame was unfair, as 
expanding the Project in scope or time frames 
covered might have detected additional errors 
that would offset the errors identified for the 1972- 
1992 period. Some Tribes also asserted that 
certain accounts (primarily judgment accounts) 
were established to compensate Tribes for particu- 
lar losses and that netting to the Tribal level 
against other judgment accounts or against non- 
judgment accounts might unlawfully deny the 
Tribe funds appropriated to achieve certain 
compensatory purposes. 

We believe there is ntcrit to Tribal assertions that 
adjustments to a particular judgment account 
should not be netted against non-judgment 
accounts or other judgment accounts. These 
judgment accounts were created pursuant to 
legislation or judicial decree to remedy a particu- 
lar grievance. Distribution of these funds is 
generally governed by the Indian Tribal Judgment 
Funds Use and Distribution Act (25 U.S.C. §§1401- 
1408) or other specific Tribal judgment fund 
distribution acts that Congress has enacted. 
Under the Use and Distribution Act and for the 
most part, other distribution acts, a portion of the 
judgment account may be distributed to Tribal 
members on a per capita basis and the remainder 
allocated for particular purposes. To the extent 
those purposes are fulfilled and/or per capita 
payments made, the funds' governing provisior\s 
typically specify that any remaining ftmds be 
returned to the Tribe. 

To prevent the dilution of the intended compensa- 
tion paid by judgment funds, we propose a 
netting process in which judgment and non- 
judgment fund accounts wo^lld be netted sepa- 



rately. With respect to judgment fund accounts, 
_we would net to the overall fund level for each 
judgrhent fund where the law pertainmg to the 
use and purpose of a particular judgment account 
does not dictate that a specific percentage or 
amount be used for a particular purpose (i.e., 
where the law states that such funds shall be 
available for use "for educational, social welfare, 
economic development," but does not specify a 
particular amount to be used for such purposes). 
This would allow a Tribe to allocate the netted 
payment from the government, as it deems appro- 
priate, to any specific activity or purpose consis- 
tent v/ith that judgment fund's governing provi- 
sions. Netting would include principal and 
interest. 

For judgment funds where the law pertaining to 
the use of such funds mandates that a specific 
percentage or amount of the fund be used for a 
particular purpose, we propose to net to the 
subaccount or activity level within the judgment 
account where possible. In this regard, it would 
be virtually impossible to reconstruct and adjust 
prior per capita payments to reflect either errors of 
overpayment or underpayment, since per capita 
payments are usually made based on the Tribal 
rolls existing at the time of the award. Moreover, 
current laws pertaining to the use and purpose of 
judgment accounts generally provide for the 
return of imcoUected per capita payments to the 
Tribe after a specific period of time. The Tribe, in 
its discretion, could in turn choose to use these 
funds to supplement a specific activity as needed. 

Non-judgment fund accounts would be netted at 
the Tribal level as previously proposed. This 
approach prevents windfall payments to Tribes 
and also prevents arbitrarily favoring those Tribes 
with multiple accounts over those with fewer 
accounts. Before any netting occurs, interest 
would be computed so that full credit would be 
given for an error notwithstanding at what point 
dviring the 20-year period the error ocairred. 



Attachment A Part 2 to Boswell Declaration 

19 



0832 



Case 1:06-cv-01897-JR Document 26-6 Filed 08/11/2007 Page12of18 



• 



With respect to Tribal assertioris that netting of 
errors based only on transacaons trorn' July 1, 15/2 
to September 30, 1992 is potentially unfair, we 
note that any additional errors that nught l>e 
found if the reconciliation were expanded beyond 
the 1972-1992 period would be as likely to work 
to a Tribe's detriment as to its benefit. Absent 
reconciliation of all accounts for all time periods, a 
settlement covering any limited period could 
potentially result in an inequity. This will be 
taken into consideration in the settlement formula 
calculations. Finally, because Congress would~ 
authorize both the netting and forgiveness process 
by statute, we do not believe there are any legal 
infirmities in netting as we have proposed. 

Based on the assumptions outlined in this 
proposal for payment of known errors, including 
interest, netting, and forgiveness of any net 
amounts that might bo considered "due" to the 
government, the combination of cash paid out 
plus amounts forgiven results in a total cost to the 
government of approximately $55,875,846 
($16,471,145 paid to Tribes, and $39,404,701 
forgiven). Disregarding any forgiven amounts, 
the out-of-pocket cost for settling known errors as 
of September 30, 1996, is approximately 
$16,471,145 (which comprises $4,634,453 m 
principal and $11,836,692 in interest). Interest 
would continue to accrue until payment occurs. 

Settlement of Claims for the Period 1972 
Through the Date of Settlement 

After paying known errors, the Department 
proposes to undertake a two-stage settlement 
process. In stage one, the Department would 
present each Tribe with a specific settlement 
proposal. The objective of this first stage is to 
minimize the transaction costs associated with 
developing a targeted settlement and direct that 
money to the Tribes, not to lawyers and 
accountants. Tribes that believe the proposal is 
fair would have the oppbrtuiuty to end the 
uncertainty, distraction, administrative burdens 



and cost of further negotiations or litigation by 
accepting the settlement. For those Tribes mat 
elect not to accept the proposal, stage two of the 
settlement process would provide an opportunity 
for govemment-to-govemment negotiations. 
We would employ the services of a mediator to 
participate with the Tribes and the Department in 
non-binding mediation. Only if these two 
informal dispute resolution mechanisms fail 
would formal adjudication of a Tribe's claims in a 
court of law become necessary or available. 

Stage One: The Settlement Offer 

The government will present each Tribe with a 
specific settiement offer. This offer would be 
separate from the payment of known errors, 
which would be paid regardless of whether the 
Tribe accepted the settlement offer. The 
settlement proposal would be developed taking 
into account a number of factors specific to the 
Tribe. These factors would likely include the 
dollar value of each type of unreconciled 
transaction (receipts, disbiu-sements and 
transfers), the error rates determined in the 
reconciliation for each type of that Tribe's 
transactions, the level of activity in the Tribe's 
accounts, including the amount of money flowing 
through the Tribe's accounts, and possible claims 
relating to investment yield, overnight interest 
earrungs, deposit lag times and other errors. The 
proposal would cover the time period from July 1, 
1972 to the date of settlement; however, the 
proposal would be in two parts which could be 
segregated: one covering July 1972 to September 
1992, and one covering October 1992 to the date of 
settlement. In other words. Tribes would have the 
option of settling for only the 1972-1992 period, or 
settling for the entire period from 1972 through 
the date of settlement. 

To provide Tribes with an incentive to settie at this 
stage, we would employ a formula for calculating 
the settlement proposal which assesses likely 
potential losses, utilizes assumptions favorable to 



Attachment A Part 2 to Boswell Declaration 



0833 



Case 1:06-cv-01897-JR Document 26-6 Filed 08/11/2007 PagelSofIB 



Tribes, and takes into accoimt the resources saved 
by.-^-n early settlement. Initial work has be2T.m to 
develop a formula that meets these requirements. 
The formula used to develop the settlement for 
July 1972 through September 1992 will employ 
information from the reconciliation project; a 
separate settlement calculation will be used to 
determine the amount for settlement of periods 
from July 1992 to the date of settlement. All 
Tribes, regardless of whether they accepted or 
disputed their account balances in the attestation 
process, would be presented with a settlement 
opportunity. 

All Tribes would have the opportunity to have the 
settlement offer explained and any questions 
answered during the three months following the 
date of the offer. Each Tribe would then have four 
months from that time (a total of seven months 
from the date of the offer) to decide whether to 
accept the offer or to'i-ject it and enter into 
goverrunent-to-govemment negotiations. Tribes 
that accept the offer w^ould enter into an 
agreement that would resolve all accounting 
claims against the government for either the time 
period from July 1, 1972 through September 30, 
1992, or July 1, 1972 to the date of settlement, 
whichever option is chosen. Tribes that accept the 
settlement offer only for the 1972-1992 period, 
however, would not be entitled to attempt to 
negotiate settlement of clainns from the post-1992 
period in the later, govemment-to-govemment 
negotiation phase (Stage Two). Any post-1972 
claims not settled in stage one would have to be 
resolved through litigation. Department of Justice 
concurrence in all settlement agreements would 
be required. 

If the settlement offer is not accepted (or no 
response is received) within seven months, it 
would be withdrawn. Tribes that fail to respond 
to the offer within seven months would lose the 
opportunity to participate in subsequent 
govemment-to-govemment negotiations, and as a 
consequence, would also lose the ability to bring a 



lawsuit regarding any claims covered by the 
settlement. Because the settlement offp'- would 
employ assumptions favorable to Tribes (e.g. 
forgiveness, compoimd interest, etc.) and would 
take into account the resource savings that an 
early settlement would provide, the settlement 
offer would not be the starting point for 
subsequent govemment-to-govemment 
negotiations should the settlement offer be 
rejected. Rather, the govemment-to-govemment 
negotiations process would be distinct and 
entirely separate. 

Stage Two: Govemment-to-Goveminent 
Negotiations 

If a Tribe rejects the government's settlement offer, 
it would have the opportunity to initiate 
govemment-to-govemment negotiations that 
would take the form of non-binding mediation. 
The process would be conducted with the 
assistance of mediators appointed by the Federal 
Mediation and Conciliation Service. Both the 
Tribe and the government would designate teams 
for the negotiation process. We expect that the 
government would be represented by 
Departmental employees and consultants, 
including employees of OST and the Office of the 
Solicitor, with assistance from Department of 
Justice attorneys. 

Tribes would be given an opportunity at this stage 
to submit any additional documentation they may 
have with regard to transactions within the scope 
of the Project, and for the July 1, 1972 through 
September 30, 1992 time period, which 
demonstrates that an error related to trust fund 
accounting claims was made by BIA with respect 
to those transactions. A request for additional 
Tribal documentation was initially made during 
the course of the Project and this would allow one 
more opportunity for Tribes to produce any 
information they may have. Tribes could also 
submit additional information about transactions 
which were deemed to be reconciled even though 



Attachment A Part 2 to Boswell Declaration 

21 



0834 



Case 1 :06-cv-01897-JR Document 26-6 Filed 08/11/2007 Page 14 of 18 



BIA and Ajthur Andersen disagreed about the 
aae^uaq/ 6t me aocuriieiTtatiorii to support the 
transaction (these were called "passed 
adjustments" in the Project). 
At the request of the account holder or the 
mediator, the government could determine 
whether additional limited research or analysis 
would facilitate a settlement between the parties. 
If so, the additional work would be undertaken at 
the expense of the government. Any additional 
work would focus on additional, specific 
information-gathering activities or statistical "" 
analyses to fill in significant gaps in the Project. 
The legislation would include parameters 
governing the circumstances under which 
additional work would be considered appropriate 
for purposes of furthering settlement negotiations. 

Under the auspices of the mediator, the Tribe and 
the government v.-ouid seek to negotiate a 
settlement acceptable to both parties. The 
govemment-to-govemment negotiations with 
each Tribe would proceed for a period of no more 
than 12 months unless both sides agree to extend 
them. If a settlement is reached, the government, 
with Department of Justice concurrence, would be 
authorized to pay the settlement amotint, in 
satisfaction of the Tribe's claims. If there is no 
agreement, the negotiation process would 
temainate. At that point, the Tribe would have six 
months to file a lawsuit according to the 
procedures and rules described below. At any 
time during the 12-month negotiation period, the 
Tribe and the federal government may mutually 
agree to terminate negotiations, and the Tribe 
would then have six months from that date to file 
litigation. 

There is no basis to estimate with precision how 
many Tribes will accept the initial settlement offer 
and how many will initiate govemment-to- 
govemment negotiations. Certaiidy, the 
Department would seek to resolve the claims of as 
many Tribes as possible through these means. 
Because the negotiation process may be resource 



intensive, the legislation should authorize the 
Department to establish priorities for commencing 
negotiations. However, no Tribe would be 
prejudiced with regard to the time limits for 
commencing and concluding negotiations, as well 
as for filing a claim in court, as a result of the 
priorities established for the negotiation process. 

Although GAO recommended that binding 
arbitration be employed to force a settlement of 
claims, the Department rejected this approach for 
several reasons. Some Tribes have expressed 
concern or skepticism about a binding, non- 
judicial approach to dispute resolution. Moreover, 
because arbitration results are binding, mles of 
discovery, evidence and procedure tend to be 
formalistic, inflexible and often abnost as 
burdensome as actual litigation. In contrast, 
nonbinding mediation may present greater 
opportunities for a more collegial, informal, and 
flexible approach to defining the critical issues 
and developing innovative approaches to 
development and settlement of claims. Finally, 
the Department believes that a more efficient 
mediation process will lead to informal 
settlements, obviating the need for formal dispute 
resolution before the courts. 

Litigated Resolution of Claims for the 
Period 1972 to Date of Settlement 

While the overarching purpose of this proposal is 
to encourage settlement of Tribal trust funds 
claims, it is not to force a settlement with Tribes 
who choose instead to litigate. Efforts have been 
made to build into this proposal incentives to 
settle, including the use of informal processes and 
a generous settlement offer at the begirming of the 
process. The Department believes it is in the 
interest of both the Tribes and the government to 
pay claims quickly and fairly rather than paying 
fees to attorneys and accountants for lawsuits. 
Nonetheless, should a Tribe desire to engage in 
litigation, this proposal does not prevent it from 
doing so. As stated above, however, a Tribe that 



Attachment A Part 2 to Boswell Declaration 



ort; 



Case 1:06-cv-01897-JR Document 26-6 Filed 08/11/2007 Page15of18 



fails to respond to the government's settlement 
ofier^^nd does not nartiHp.-atr ip ^be oiovemrnept- 
to-govemment negotiation phase would be barred 
from filing suit for claims covered by the 
settlement (this would include claims from 1972 
through the date a response to the settlement offer 
was due). 

Based on our preference for informal dispute 
resolution approaches, the proposal would 
preclude the filing of any new claims after 
November 12, 1997 (the date this proposal is being 
submited to Congress), where such claims arise 
from the federal government's management and 
accounting of Tribal trust funds for the period July 
1, 1972 through September 30, 1992, until after the 
claims have been submitted to the govemment-to- 
govemment negotiation process described above 
and that process has not produced a settlement. 
This limitation on filing new claims is not an 
absolute bar to filingpcj-aims. Rather, it simply 
requires Tribes to utilize the informal dispute 
resolution mechanisms outlined in this proposal 
before resorting to litigation. Moreover, the filing 
of any such claims would be required within six 
months of the conclusion of any unsuccessful 
govemment-to-govemment negotiations. Claims 
would be filed in the U.S. Court of Federal Claims. 
This venue is recommended becavise the Court of 
Claims is familiar with the Indian trust fund 
issues as well as claims for money damages 
against the government. Claims filed prior to 
November 12, 1997 would be unaffected by this 
proposal. 

In any such litigation, once the Tribal accoimt 
holder makes a prima facie case on liability, the 
goverrunent would bear the burden of 
demoi\strating that the Tribe's accounts are 
correct. The legislation would provide that the 
goverrunent could meet this burden by putting in 
the record the results of the reconciliation and 
other efforts undertaken before and during the 
govemment-to-govemment negotiations to 
account for the Tribe's trust funds. There are 



several reasons for legislatively determining the 
'^uantvLtru'^f evidence necessary to me'^ "..!-.- 
government's burden of proof. By this point, the 
government will have invested considerable effort 
to reconstruct and reconcile accounts. It would be 
wasteful of limited government resources for a 
court to direct the government to engage in any 
additional wholesale document collection 
exercises. Given the condition of the records and 
accounting systems, and after the expenditure of 
$21 million over a five-year period, we believe we 
have acciunulated most of the available 
dociunents. The cost of locating additional 
records would likely be very high and yield little 
additional information. Moreover, courts have 
accepted sinular accotmting information as 
sufficient in previous trust fund accounting cases. 
Seg, e^ Red Lake Band v. ITnitpH '^tatp -; 17 CI. Ct. 
362 (1989); Minnesota Chippewa Tribe v. United 
States, 14 CI. Ct. 116 (1987). Accordingly, once aU 
available reconciliation data and related work 
product have been placed in the record, the 
burden of persuasion would shift to the Tribal 
plaintiff to demonstrate that it suffered a loss by 
virtue of the government's trust fund 
management or accoimting practices. 

A Tribe also would be precluded from introducing 
any Tribal documents demonstrating errors in the 
litigation that it did not produce during the 
govemment-to-govemment negotiation process. 
Given the significant investment of time and 
resources that both the Tribe and the government 
will allocate to this process, there is no reason why 
a Tribe should withhold these records vmtil the 
litigation stage. This requirement would be 
consistent with the underlying objective of 
resolving claims in the informal dispute resolution 
stage. 

We also want to ensure that a Tribe has the 
opporturuty to be represented by capable counsel 
should it believe the government did not propose 
to compensate it fairly for its claims. At the same 
time, we do not want this process to benefit 



Attachment A Part 2 to Boswell Declaration 
23 



081A 



Case 1:06-cv-01897-JR Document 26-6 Filed 08/11/2007 Page16of18 



primarily lawyers, rather than Tribal account 
"noidersV A'ccordmgly; we propose to^lim 
amount attorneys could be paid to twenty percent 
of the total amourit the Tribe receive^ through 
either a settlement or judgment in the litigation 
for awards up to $1 million, and for any awards 
above $1 million, up to twenty percent of that 
portion below $1 million, and up to ten percent of 
the portion above $1 million of the amount the 
Tribe receives. 

The proposal also seeks to establish a fixed rate of 
simple interest at four percent that will apply to 
any amounts found payable to Tribes as the result 
of litigation. This rate of interest is the minimum 
rate provided by statute for the Tribal trust funds 
deposited in the Treasiory. See 25 U.S.C. § 161a, 
§ 161b. 

The Departmen'i's legislative proposal also would 
clarify what we believe to be the Congressional 
intent that provisions in recent appropriations 
laws tolling the statute of limitations apply only 
to those claims for which the statute of limitatioris 
had not already run.. In addition, the favorable 
treatment of claims with respect to netting, 
forgiveness and interest in the settlement context 
would not apply in litigation. 

Resource Requirements for the 
Settlement Process 

The legislation needs to include a number of 
budgetary mechanisms to support the settlement 
process. The Department proposes the following 
budgetary framework to support the settlement 
proposal:^ 

• Payment of Known Errors: 

Permanent Definite Budget Authority 

The Department proposes that permanent definite 
budget authority be provided to pay known 
errors, currently estimated at $16.5 nrullion. In this 
case, the government's liability is clear, and as 



such, with the excepjion ofthe difference t>etween 
compouhS and'sifnple mteresf, directlpendirig is 
offset by the government's liabiUty. 

• Settlement Offer: 

Permanent Indefinite Appropriations 
Under 31 U.S.C. §1304 

• Negotiated Settlement Amounts: 
Permanent Indefinite Appropriations 

Under 31 U.S.C. §1304 

Department of Justice-approved settlements are, 
in effect, the same as judgments or compromise 
settlements of imminent or existing litigation and 
are therefore payable under the permanent indefi- 
nite appropriation for judgments established by 
31 U.S.C. § 1304. 

• Additional Analysis under Settlement 
Negotiations: 

Permanent Definite Budget Authority 



^ Definite authority is stated as a specific amount or 
"not to exceed" a specific aggregate aimount at the time 
the authority is granted, whether in an appropriations 
act or other law, and the full amount so provided is 
recorded as budget authority for that period. 

Indefinite authority is not stated as a specific amount. 
Rather, the amoiont provided is determined by 
specified variable factors, such as the amount of the 
receipts from a specified source, the amount of the 
proceeds from the sale of financial assets with recourse, 
or the amount necessary to cover obligations associated 
with entitlement. 

Ciurent authority reqiiires congressional appropria- 
tions action on the request for new budget authority for 
the year involved. 

Permanent authority becomes available pursuant to 
standing provisions of law without further 
appropriations action by Congress after transmittal of 
the budget for the year involved. When permanent 
budget authority is enacted, it is treated as permanent 
authority the first year it becomes available, as well as 
in succeeding years. 



Attachment A Part 2 to Boswell Declaration 



0837 



Case 1:06-cv-01897-JR Document 26-6 Filed 08/11/2007 Page17of18 



• 



The Department proposes that the additional 
analv-^^'v'^^^t ir\avj-i<3 or/^p.rs'-I h\. ;'-./^.^r>^;a^■^lJ•c. 

during the govemment-to-govemment negotia- 
tions be funded under permanent definite budget 
authority. The Department proposes permanent 
authority as it is critical that the funds be available 
to support the negotiations, otherwise the negotia- 
tions would not be an option and Tribes would 
increasingly have to rely on litigation. The 
amount available should be authorized at a 
specific annual amount to ensure that additional 
work is directed only at worthwhile analysis. 

• Federal Negotiation Teams and 
Authorization for Annual/Current 
Mediation Services: 
Discretionary Appropriations 

The Department proposes that funding to support 
Federal negotiation teams be provided under 
aimual discretionary appropriations. There 
should be sufficient lead time to help ensure 
funding is available. 

• Overdrafts & Accounting Deficiencies: 
Permanent Indefinite Budget Authority 



The Department proposes that permanent indefi- 
"^•■-rb^-id^ct ?':thcrit)' be provided to cor: -; :t-- 
drafts & accoimting deficiencies. As discussed in 
the December report, these amounts relate to the 
restoration of overdraft interest clearing accounts 
(which apply only to IIM accounts) and settlement 
of miscellaneous losses (which apply to both 
Tribal and IIM accounts). Essentially, the funding 
is required to eliminate an overall "trust fund 
deficit" resulting from trust fund Habilities 
exceeding trust fund assets. While not directly 
related to the Tribal settlement proposal, it is 
critical that once these discrepancies have been 
investigated, authority and funding be available 
to make the appropriate accounting adjustments; 
otherwise, liability for these errors continues. The 
Office of Special Trustee has completed research 
on the discrepancies for Tribal accounts, and 
projects that the initial research on the IIM 
account discrepancies will be completed sometime 
in fiscal year 1998. The preliminary estimate of 
funds required to cover these deficiencies is $ 51.1 
million, although the amount ultimately could be 
substantially lower or higher. 



Attachment A Part 2 to Boswell Declaration 

25 



0838 



Case 1:06-cv-01897-JR Document 26-6 Filed 08/11/2007 PagelBofIB 




5. CONCLUSION 



The Department's management and administra- 



<t ,s. 






numerous reports, recommendations and critiques 
over several decades. While there may bo 
disagreements about the magnitude of Tribal 
losses, tliere is no dispute about several key 
principles. First, Tribes are entitled to manage- 
ment and administration of their funds in a 
manner that meets the Secretary's trust obliga- 
tions and legal requirements, and assures the 
proper accounting and investment of funds. 
Second, the complexity of the Department's 
management and administrative responsibilities 
have far outstripped the capabilities of the 
Departnient's systems and practices and they 
must be upgraded. Third, fractionation of owner- 
ship interests on Indian allottee lands must be 
halted and reversed. Fourth, if Tribes have lost 
money as a result of inadequacies in the 
Department's 33/stems and practices, they should 
be compensated. 



Never before has the federal government been so 
-u^^^i:mr.cu ..oav;i'iie\"etI\cje-i::.Y3cr:vt'Jr. i\"i~c~ ' -" 
direction of Congress, it has completed a five year, 
S21 million reconciliation to identif}' shortcomings 
in accounting for Tribal fimds. It has proposed 
legislation to address fractionation. The Special 
Trustee has submitted a strategic plan and he and 
the Department are now together focusing atten- 
tion on effectively reforming the management and 
accounting systems. This report offers the final 
piece — an approach to reimburse any losses that 
may have occurred. 

Certainly, this is not the only way to address the 
issue ol potential Tribal losses. But it puts forth 
for public discussion and debate a framework 
upon which to proceed. The Administration looks 
forward to working with Congress and Tribes to 
enact legislation that will meet all of these goals^ 



Attachment A Part 2 to Boswell Declaration 

7fi 



0839 



Case 1:06-cv-01897-JR Document 26-7 Filed 08/11/2007 Page 1 of 28 



ATTACHMENT B 



TO BOSWELL 



DECLARATION 



PARTI 



Case 1:06-cv-01897-JR Document 26-7 Filed 08/11/2007 Page 2 of 28 



THE SECRETARY OF THE INTERIOR 
WASHINGTON 




MAY 3 1 1996 

Honorable John McCain 
Chainnan, Committee on Indian Affairs 
United States Senate 
Washington, DC 20510 

Dear Mr. Chairman: 

f^Ti^l^^jfr^!" ^''"^"'"""^'' '"^^ ^""'^ Management Reform Act of 1994, P.L. 103^12 

r^r^Jf' ^^ ' ^ f?-^ P™"^"*'' ^°' ^^ ""^"^"^ ^^'^ '*^°« ^y ^^^ Secretary of the Interior to the 
Committee on Naturd Resources of the House of Representatives and the Committee on Indian 
Affairs of the Senate by May 31, 1996, regarding the reconciliation of Tribal trust fund accounts. 

^glf h"1'il"'* rr""" 7r» '^""'^"^ ^°' "^^ ^^"^ °""'y ^' ^972, through September 30. 
1992, by Arthur Andersen LLP usmg procedures in a contract with the Bureau of Indian Afeirs 
Commencmg m January 1996, each account holder was provided a report on the reconciliation Qf its 
a,..unts along with account statements that show account balances, reconciled transactions, a^^d' 
proposed adjustments. Each account holder was also provided account statements for the^riod of 
October 1. 1992, through September 30, 1995. which were reconciled internally by the Offii of Trust 
Funds Management. In addition, each account holder was provided images on CD ROM of the 

L? P'?!^??"'!^' '''°"'"'^ ^^ ^"^ ^^"^ ^ "^^ ^^«* ^°<^"^<="^ are Arthur Andersen 
LLP s actual working papers. 

Subsequent to the distribution of the reconciliation report and account statements, a national meeting, 
to which aU account holders were invited, was held in Albuquerque. New Mexico, to explain the 
reconcUi^ion methodology and the report and account statement format, content, and terminology A. 
senes of five (5) regional meetings, of which two (2) have been held, were also scheduled to wo^" 
direcUy with each account holder to address questions and issues on its specific report and account 
statements. At the national and two regional meetings, account holders stated that they want their 
comments to be included in any report to the Congress. 

Through April 30, 1996. seventy seven (77) account holders have responded. Specifically two (2) 
accomit holders have accepted and three (3) account holders have disputed their account balances 
The balance of the account holders have requested additional time and/or a meeting. Because all of 
the scheduled meetings have not been held to receive and discuss account holder issues and comments 
and smce many account holders have not communicated their acceptance or dispute of their account 
balances, only an interim report on the account holders' attestation can be provided at this time 
Accordmgly, we submit herein the results of the account holders' communications through April 30, 
1996. as an interim report. Once the remaining scheduled meetings have been held and account 



0637 
Attachment B Part 1 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-7 Filed 08/11/2007 Page 3 of 28 



holders have had an opportunity to communicate their reaction to the balances, a 'final report on 
account holder attestations will be submitted to the Congress. The final report will be sent by 
Novemb«'^-5. 1??^,,-™=™-- — — ~- .-— .,— ^^_^._,,... - - 

As required by Section 304, the fcUowing repon on the reconciliation of Tribal trust fiind accounts 
includes; 

(1) Adescriptionofthemethodologyinreconcilingtrustfiind accounts, 

(2) information on attestations by each account holder that they accept the balances in the 
account statements or that they dispute the balances along with the reasons for their dispute, 
and 

(3) the eflforts the Secretary will undertake to resolve the disputes. 
METHODOLOGY 

The methodology used to reconcile the Tribal trust fiind accounts consisted of agreed-upon 
procedures applied to specific elements, accounts or items of a fiiwncial statement The agreed-upon 
procedures methodology was followed after alternative methodologies and ^proaches were 
considered by the Departm-iiit of the Interior, the OflSce of Management and Budget, the General 
Accounting OfiBce and the Intertribal Monitoring Association. The performance of the work and the 
reporting of the findings were governed by the Statement on Auditing Standards 35 issued by the 
Auditing Standards Board, American Institute of Certified Public Accountants. The work performed, 
however, is not an audit as defined by the American Institute of Certified Public Accountants because 
all the necessary financial records required to perform an audit could not be located. Consequently, 
the conclusions that can be drawn fi-om the results can only be related to the records reviewed and 
cannot be applied to any unreconciled transaction. The specific procedures applied by Arthur 
Andersen LLP are described in its "Agreed-Upon Procedures and Findings Report of Independent 
Public Accountants" dated December 3 1, 1995 (see Enclosure I). Also, enclosed is a copy of a 
"Sample" report submitted to each account holder which demonstrates the report format, detailed 
description of the reconciliation methodology and the terminology used (see Enclosure II). 

ATTESTATTQN 

Distribution of the agreed-upon procedures report and account statements to account holders 
commenced in January 1996. The report and account statements were sent to 280 account holders 
(see Enclosure HI). The whereabouts of nine (9) account holders were unknown and distribution 
could not be made. . Also, account statements were not sent to individual Indians who received a per 
capita distribution of Tribal trust fimds. 

To assist account holders in making an informed decision on the Agreed-Upon Procedures and 
Fmdings Report and account statements, account holders were invited to send representatives to a 



0638 
Attachment B Part 1 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-7 Filed 08/11/2007 Page 4 of 28 



national meeting held Febniary 14 and 15, 1996, in Albuquerque, New Mexico. At this meeting, the 
OflSce of the Special Trustee for_Ainericam Indians and Arthur Andersen JXP discussed the 
methodology and findings resulting from applying the agreed-upon procedures and describoi in detail 
the fonnat, content and tenninology of the report and account statements. A demonstration on the 
use and content of the CD ROM was also provided. A listing of the account holders that attended this 
meeting is presented in Enclosure IV. 

In addition to the national meeting, a series of five regional meetings were scheduled throughout the 
country to provide account holders with individual consultation on their report and account 
statements. The first two (2) regional meetings have been completed and a list of the account holders 
that attended each meeting is contained in Enclosure V. None of the account holders attending these 
meetings accepted or disputed their account balances. The regional meetings schedule is as follows: 

March 19-22, 1996 Sacramento, California 

April 9-12, 1996 Portland, Oregon 

June 3-7, 1996 Tulsa, Oklahoma 

June lg-21, 1996 Billings, Montana 

July 16-19, 1996 Albuquerque, New Mexico 

sseofTji addition to the regional meetings, final exit conferences were held with four (4) of the^v<3 (5) 
Tribes that participated in the Five Tribes Pilot to discuss their individual report findings and account 
statements. The Five Tribes Pilot project involved the Hopi, Yakama, Flathead, Fort Berthold, and 
Fort Peck Tribes and had two components. First, it used available records to reconcile the accounts of 
those Tribes on an expedited basis. Second, stafif woriced on site to compare the terms of leases with 
the actual amount of cash collected. The Hopi representative only sought clarification of the Tribe's 
report, statements, and the settlement process. The Tribe has not communicated a decision as to 
acceptance or dispute of their account balances. At the meeting with the Yakama Tribal 
representatives, we received a resolution fi-om the Yakama Tribal Council that set forth measures to 
meet the local needs and priorities of the Tribe but did not directly address the account balance issue. 
A copy of the resolution is provided as Enclosure VL ITie Flathead Tribe advised by a formal 
statement (see Enclosure \^ that they did not accept the account balances and requested meetings 
to attempt a negotiated settlemwit. The Fort Peck Tribe maintained their position that they would 
accept only a fijU accounting of their trust assets and that the reconciliation project was not sufficient. 
A final exit conference with the Fort Berthold Tribe is pending. The fiiil text of the response of 
Assiniboine and Sioux Tribes of the Fort Peck Reservation is enclosed as Enclosure Vm. 

Through April 30, 1996, 28 percent of the account holders that were provided a report and account 
statements have communicated with us concerning thdr account balances. Indudol with each account 
holder's individual report and account statements was an "Acknowledgment" form (see Enclosure IX) 
for the convenience of the account holder to comrouiiicate its acceptance or dispute of its account 
balances. Through April 30, 1996, 77 of the 280 account holders that were sent a riq>ort and account 
Statements have responded (see Enclosure X) by use of the acknowledgment form or other formal 
written coinmunication. Specifically, two (2) account holders have accepted (see Enclosure XI) and 
three (3) account holders have disputed thdr account balances (see Enclosures VI , Vn and XQ). 



0639 
Attachment B Part 1 to Boswell Declaration 



Case 1 :06-cv-01 897-JR Document 26-7 Filed 08/1 1/2007 Page 5 of 28 



Three (3) of the 77 account holders only requested a meeting to discuss their specific questions or 
concerns regarding the report and account statements, but did not request additional time. Sixty-nine 
(69) respondeu ihat they rcqCiir^ adoitionai iinie to review tne reports aha made no response as to 
acceptance or dispute of the account balances. Thirty (30) of this latter category also requested an 
individual meeting to discuss their report and statements. The purpose of the regional meetings is to 
accommodate the account holders wishing individual meetings. 

DrsPrrTTRF<;nrTmf)tJ 

Subsection 3 of Section 304 of the Art requires "a statement by the Secretary with regard to each 
account balance disputed by the account holder outlining eflForts the Secretary will undertake to 
resolve the dispute." Through April 30, 1996, three (3) of the 280 account holders have disputed the 
balance of their accounts. Until we complete our regional meetings and the Tribes have had an 
opportunity to analyze the reports and documentation they have been provided, the Department will 
not know how niany Tribes will dispute the balance of their accounts. At that time, the Department 
will be in a position to propose a mechanism to resolve any such disputes. 

Sincerely, 




Enclosures 



Attachment B Part 1 to Boswell Declaration ^^^^ 



Case 1:06-cv-01897-JR Document 26-7 Filed 08/11/2007 Page 6 of 28 




THE SECRETARY OF THE INTERIOR 
WASHINGTON 



MAY 3 L[996 



Honorable Don Young 
Chainnan, Conunittee on Resources 
House of Representatives 
Washington, DC 20515 

Dear Mr. Chainnan: ' 

Section 304 of the American Indian Trust Fund Management Reform Act of 1994, P.L. 103-412 
(25 U.S.C. §4001, fit ssq.) provides for the submittal of a report by the Secretary of the Interior to. the 
Committee on Natural Resources of the House of Representatives and the Committee on Indian 
Affairs of the Senate by May 3 1, 1996, regarding the reconciliation of Tribal trust fund accounts. 

Tribal trust fund accounts were reconciled for the period of July 1, 1972, through September 30, 
1992, by Arthur Andersen LLP using procedures m a contract with the Bureau of Indian Affiurs. 
Commencing in January 1996, each account holder was provided a report on the reconciliation of its 
accounts along with account statements that show account balances, reconciled transactions, and 
proposed adjustments. Each account holder was also provided account statements for the period of 
October 1, 1992, through September 30, 1995, which were reconciled internally by the OfBce of Trust 
Funds Management. In addition, each account holder was provided images on CD ROM of the 
financial documents reconciled by Arthur Andersen LLP. The imaged documents are Arthur Andersen 
LLP ' s actual woridng papers. 

Subsequent to the distribution of the reconciliation report and account statements, a national meeting, 
to which all account holders were invited, was held in Albuquerque, New Mexico, to explain the 
reconciliation methodology and the report and account statonent format, content, and terminology. A •. 
series of five (5) regional meetings, of wWch two (2) have been held, were also scheduled to work 
directly with each account holder to address questions and issues on its specific report and account 
statements. At the national and two regional meetings, account holders stated that they want their 
comments to be included in ai^ report to the Congress. 

Through April 30, 1996, seventy seven (77) account holders have responded. Specifically, two (2) 
account holders have accepted and three (3) account holders have disputed their account balances. 
The balance of the account holders have requested additional time and/or a meeting. Because all of 
the scheduled meetings have not been held to receive and discuss account holder issues and comments 
and since many account holders have not communicated their acceptance or dispute of thdr account 
balances, only an interim report on the account holders' attestation can be provided at this time. 
Accordingly, we submit herein the results of the account holders' communications through April 30, 
1996, as an interim report Once the remaining scheduled ineetings have been held and account 



0641 
Attachment B Part 1 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-7 Filed 08/11/2007 Page 7 of 28 



holders have had an opportunity to communicate their reaction to the balances, a final report on 
account holder attestations will be submitted to the Congress. The final report will be sent by 

-Novcnine:! 5, :?'*?—— '— .^___- -=.__ 

As required by Section 304, the foUowLng report en the reconciliation of Tribal trust fond accounts 
includes: 

(1) A description of the methodology in reconciling trust fund accounts, 

(2) information on attestations by each account holder that they accept the balances in the 
account statements or that they dispute the balances along with the reasons for their dispute, 
and 



(3) the efforts the Secretary will undertake to resolve the disputes. 
METHODOLOCtY 

The methodology used to reconcile the Tribal trust fond accounts consisted of agreed-upon 
procedures appUed to specific elements, accounts or items of a financial statement The agreed-upon 
procedures methodology was followed after alternative methodologies and approaches were 
considered by the DepaffSient of the Interior, the Office of Management and Budget, the General 
Accounting Office and the Intertribal Monitoring Association. The performance of the woric and the 
reporting of the findings were governed by the Statement on Auditing Standards 35 issued by the 
Auditing Standards Board, American Institute of Certified Public Accountants. The work performed, 
however, is not an audit as defined by the American Institute of Certified Public Accountants because 
all the necessary financial records required to perform an audit could not be located. Consequently, 
the conclusions that can be drawn fi-om the results can only be related to the records reviewed and 
cannot be appUed to any unreconciled transactioa The specific procedures applied by Arthur 
Andersen LLP are described in its "Agreed-Upon Procedures and Fmdings Report of Independent 
PubUc Accountants" dated December 3 1, 1995 (see Enclosure I). Also, enclosed is a copy of a 
"Sample" report submitted to each account holder which demonstrates the report format, detailed 
descnption of the reconciliation methodology and the terminology used (see Enclosure O). 

ATTESTATION 

Distribution of the agreed-upon procedures report and account statements to account holders 
commenced in January 1996. The report and accoimt statements were sent to 280 account holders 
(see Enclosure HI). The whereabouts of nine (9) account holders were unknown and distribution 
could not be made. Also, account statements were not sent to individual Indians who recdved a per 
capita distribution of Tribal trust fonds. 

To assist account holders in making an informed decision on the Agreed-Upon Procedures and 
Findings Report and account statements, account holders were invited to send representatives to a 



Attachment B Part 1 to Boswell Declaration ^^^^ 



Case 1:06-cv-01897-JR Document 26-7 Filed 08/11/2007 Page 8 of 28 



national meeting held February 14 and 15, 1996, in Albuquerque, New Mexico. At this meeting, the 
^ OflBce of the Special TmstwjforAmeric^ Indians and Arthur Andersen LLP discussed the 

metnotiuiugy and nnmngs fesuinng rrom applying the agreed-upon procedures and described in detail 
the format, content and terminology of the report and account Statements. A demonstration on the 
use and content of the CD ROM was also provided. A listing of the account holders that attended this 
meeting is presented in Enclosure IV. 

In addition to the national meeting, a series of five regional meetings were scheduled throughout the 
country to provide account holders with individual consultation on their report and account 
statements. The first two (2) regional meetings have been completed and a list of the account holders 
that attended each meeting is contained in Enclosure V. None of the account holders attending these 
meetings accepted or disputed their account balances. The regional meetings schedule is as foUows: 

March 19-22, 1996 Sacramento, California 

April 9-12, 1996 Portland, Oregon 

June 3-7, 1996 Tulsa, Oklahoma 

June 18-21, 1996 Billings, Montana 

July 1 6- 1 9, 1 996 Albuquerque, New Mexico 

.-=vr^ In addition to the regional meetings, final exit conferences were held with four (4) of the «.vc (5) 
Tribes that participated in the Five Tribes PUot to discuss their individual report findings and account 
statements. The Five Tribes PUot project involved the Hopi, Yakama, Flathead, Fort Berthold, and 
Fort Peck Tribes and had two components. First, h used available records to reconcile the accounts of 
those Tribes on an expedited basis. Second, staff woriced on site to compare the tenns of leases with 
the actual amount of cash coUected. The Hopi representative only sought clarification of the Tribe's 
report, statements, and the settlement process. The Tribe has not communicated a decision as to 
acceptance or dispute of their account balances. At the meeting with the Yakama Tribal 
representatives, we received a resolution from the Yakama Tribal CouncU that set forth measures to 
meet the local needs and priorities of the Tribe but did not directly address the account balance issue. 
A copy of the resolution is provided as Enclosure VI. The Flathead Tribe advised by a fonnal 
statement (see Enclosure VII) that they did not accept the account balances and requested meetings 
to attempt a negotiated settlement. The Fort Peck Tribe maintained their position that they would 
accept only a fiiU accounting of their tmst assets and that the reconciliation project was not sufficient. 
A final exit conference with the Fort Berthold Tribe is pending. The fiiU text of the response of 
Assiniboine and Sioux Tribes of the Fort Peck Reservation is enclosed as Enclosure VHI. 

Through April 30, 1996, 28 percent of the account holders that were provided a report and account 
statements have communicated with us concerning their account balances. Included with each account 
holder's individual report and account statements was an "Acknowledgment" form (see Enclosure DQ 
for the convenience of the account holder to co;nmunicate its acceptance or dispute of its account 
balances. Through April 30, 1996, 77 of the 280 account holders that were sent a report and account . 
statements have responded (see Enclosure X) by use of the acknowledgment form or other fonnal 
written conmumication. Specifically, two (2) account holders have accepted (sec Enclosure XI) and 
three (3) account holders have disputed their account balances (see Enclosures VI , VU and XH). 



0643 
Attachment B Part 1 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-7 Filed 08/11/2007 Page 9 of 28 



Three (3) of the 77 account holders only requested a meeting to discuss their specific questions or 
concerns regarding the report and account statements, but did not request additional time. Sixty-nine 
(69) ifcspondid v^s4&»^..j'.t4uiitu siuditi^iiai iiiiie tc itiicw ihs icporu> ana made no response as to " 
acceptance or dispute of the account balances. Thirty (30) of this latter category also requested an 
individual meeting to discuss their report and statements. Tlie purpose of the regional meetings is to 
accommodate the account holders wishing individual meetings. 

DISPUTE RESOLTJTTON 

Subsection 3 of Section 304 of the Act requires "a statement by the Secretary with regard to each 
account balance disputed by the accoum holder outlining efforts the Secretary will undertake to 
resolve the dispute." Through April 30, 1996, three (3) of the 280 account holders have disputed the 
balance of their accounts. Until we complete our regional meetings and the Tribes have had an 
opportunity to analyze the reports and documentation they have been provided, the Department will 
not know how many Tribes will dispute the balance of their accounts. At that time, the Departmert 
will be in a position to propose a mechanism to resolve any such disputes. 

Sincerely, 




Enclosures 



0644 
Attachment B Part 1 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-7 Filed 08/11/2007 Page10of28 



Enclosure I ■ 



Attachment B Part 1 to Boswell Declaration 



0645 



Case 1 :06-cv-0189!^-Jlfp^^^44»^g<5jtj^-^£]^l^^^ Page 1 1 of 28 



# 



'-t— 



Agreed-Upon Frocedares and Hndings Report of 
Independent Public Accountants 

.^.«'^??4ls£^-^ritsrijr. Bureau of Indian AM^^-~- 



At your request, ^J\d in arcordance with tfie U^. Department of the kiterior, Bureau ~f Indian 
Affairs (the Bureau) contract number CMK00129395, as modified at various dates (the 
Contract), we have performed ttie following agreed-upon procedures (see items numbered one 
(1) through seven (7) below) with respect to ti\e Tribal Trust accoimt transactions of the 

(the Tribe) for the period 
from July 1, 1972 (Fiscal Year 1973) through September 30, 1992 (Fiscal Year 1992) (Le., 
reconciliation period), except as otherwise noted. As a result of applying tiie agreed-upon 
procedures, findings were noted (see Attachments A through F-3 for detcul of findings). 

The Congressional mandate for the Bureau Tribal Trust Ftmds Reconciliation Project 
(Reconciliation Project) requires an accounting to each Tribe for each of their Trust accounts. 
The primary objective of the Reconciliation Project, as stated in the Contract, is to reconstruct 
historical transactioits, to the extent practicable, for all years for which records are available for 
all Tribal Trust accounts managed by the Bureau. Phase I of the Reconciliation Project 
substantiated that not all records would be available for a full accounting of such funds. Due to 
the unavailability of some records, ttie scope of the Reconciliation Project is designed to 
provide reasonable assurance as to tiie accuracy of each Tribal Trust account balance. The 
agreed-upon procedures performed, as required by the Contract, represent the Bureau's 
standard of reasonableness. 

Below are summaries of the agreed-upon procedures applied. Attachments A through F-3 
furtiier detail certain procedures, findings and reportable conditions and are incorporated by 
reference into this report Attadunents A dirou^ F-3 include information marked 
"Supplemental Information" which has been included at the Bureau's request to further clarify 
ti\e report This supplemental information has not been subjected to the agreed-upon 
procedures described below. 

Sovure documents used in performing all of the following agreed-upon procedures were 
obtained by the Bureau and provided to us for reconciliahon purposes. The Bureau has 
advised us that not all of the source documents for the reconciliahon period could be located. 
The number and percentage of transactions that were reconciled to source documents are 
shown in Attachments A-1 and A-2, "Summary of Basic Reconciliation Results for All Tribes" 
and "Summary of Basic Reconciliation Results for the Tribe", respectively. 

1. Account Statements 

We prepared account statements including detail of trjmsactions, baljmces, results of 
reconciliations and proposed adjustments using Bureau provided financial records. The 
accompanying Tribal account statements should be read in conjunction with this report 



Attachment B Part 1 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-7 Filed 08/11/2007 Page12of28 

The accompanying statements do not include award accounts with multiple tribal 
beneficiaries for the period the award was undistributed. Such statements have been 
delivered to the Bureau for appropriate dissemination. 

2. Basic Reconciliation 

We perio^^^-d ii-ne 'c!'''\^r'?'' rjr!j<"'?di'F'*n.,toLr?concJle individual arrnunt transactions: 

a. Receipts - We verified (i.e., traced and agreed) non-investment receipts posted to 
each of tiie Tribe's accotmts, to the extent source documentation was provided, as to 
amount date and account number to deposit tickets and/ or related collection 
vouchers, journal vouchers and/ or other relevant collection docjimentation (see 
Attachments A, A-1 and A-2 for "Summary of Basic Reconciliation Procedures", 
"Summary of Basic Reconciliation Results for All Tribes" and "Summary of Basic 
Reconciliation Results for die Tribe", respectively). 

b. Disbursements - We verified (Le., traced and agreed) non-investment disbursements 
posted to each of the Tribe's accounts, to the extent source documentation was 
provided, as to amount date and account number to U^. Treasury ("Treasury") 
processed SF1166 documents (Voucher and Schedule of Payment), Treasury reports 
(GOALS) of processed SF1166's, journal vouchers and/ or other relevant 
disbursement documentation. We also verified (i.e., traced and agreed), to the extent 
source documentation was provided, the posted disbursement transactions as to 
amount, date and account number to the requests for withdrawal from the Tribe 
and/ or the Bureau (see Attachments A, A-1, A-2 and A-3 for "Summary of Basic 
Reconciliation Procedures", "Summary of Basic Reconciliation Results for All 
Tribes", "Summary of Basic Reconciliation Results for the Tribe" and "Summary of 
Basic Reconciliation Disbursement Transaction Results for the Tribe", respectively). 

c Investment Transactions - We also performed procedures similar to 2a and 2b above 
for certain investment transactions (i.e., pvmrhases <md maturities) in Fiscal Years 
1986 Ihrou^ 1991. However, these procedures were discontinued and these 
transactions were tested through alternative procedures such as Investment Yield 
Analysis and Treasury Interest Recalculation (see Attachments B-1, B-la, B-2 and B- 
2a for "Sununary of Investment Yield Analysis Procedures", "Summary of 
Investment Yield Analysis Results for the Tribe", "Summary of Treasury Interest 
Recalculation Procedures" and "Stunmary of Treasury Interest Recalculation Results 
for the Tribe", respectively). 

3. Investment Analysis 

The following procedures were applied to Fiscal Years 1978 through 1992. General 
ledger income/ cost codes needed to determine whether a transaction is interest related 
weie not available for years prior to Fiscal Year 1978 and, therefore, interest receipts 
could not be identified for comparison. 

a. Investment Yield Analysis - We calculated annual investment interest yields on each 
of the Tribe's accoimts and compared to the Armual Tribal Fund Benchmark rates 
(Benchmark) (see Attachment B-1) to identify potential errors in interest earnings. 
We investigated imusual fluctuations from the Benchmark parameters (see 
Attachment B-1 for discussion of parameters) to determine whetiier amounts were 
properly posted. This analysis also provides information to Tribes as to the 

Attachment B Part f to Boswell Declaration ^^'^'^ 



b. 



Case 1 :06-cv-01897-JR Document 26-7 Filed 08/11/2007 Page 13 of 28 
performance of their specific accounts compared to the Tribal Trust Fund as a whole, 
as reported by tiie Bureau (see Attachments B-1 and B-la for "Summary of 
Investment Yield Analysis Procedures" and "Summary of Investment Yield Analysis 
Results for the Tribe", respectively). 

Treasury Interest Recalculation - We recalculated Treasury Ovemighter interest 
earnings and statutory Treasury interest earnings received by the Tribe onAe daily^ . 
casnbaiaxiceaia..ch of lis Tdb/sTnzst accounts usf-5th«arP'''-^^'^>^ ^ ^- 

interest rates and daily balances provided by the Bureau (see Attachments B-2 and B-_ 
2a for "Suiiimary of Treasury Interest Recalculation Procedures" and "Summary of 
Treasury Interest Recalculation Results for the Tribe", respectively). 

c Pro Forma Calculations - We performed, for informational purposes only, pro forma 
calculations of interest income on uninvested funds for Fiscal Years 1978 through 
1992 for aU of the Tribe's Trust accounts. This calculation is an estimate of what 
might have been earned had uninvested funds yielded returns comparable to the 
Benchmark rates. The calculation is an automated calculation of interest based on 
Bureau provided general ledger reported balances and the Benchmark rates (see 
Attachments B-3 and B-3a for "Summary of Pro Forma Procedures" and "Summary 
of Pro Forma Results for ttie Tribe", respectively). 

4. Anal ytical Review 

We prepared graphs for non-investment and non-judgment receipt and disbursement 
transactions (see Attachments A-1 and A-2 for "Summary of Basic RecondUation Results 
for All Tribes" and "Summary of Basic Reconciliation Results for the Tnbe") for Fiscal 
Years 1978 through 1992 (see Attachment C-1 for "Analytical Review Graphs for the 
Tribe", if applicable). 

In addition, for fifteen (15) tribes selected by the Bureau, we investigated unusual 
fluctuations in receipts and disbursements activity (see Attachment C-2 for "Summary of 
Analytical Review Procedures and Reportable Conditions for the Tribe", if applicable). 

5. Svstems Reconciliation 

a- We reconciled the MoneyMax System (Bureau investment subsidiary detail) 

investment balances to the Finance System (general ledger) investment balances for 
an Tn^es as of September 30, 1992, with tiie exception of certain investment 
transactions affecting several tribes which were reconciled internally by the Bureau. 
Any adjustments resulting from such internal recondUations are not reflected m tfus 
report or in the accompanying Tribal account statements (see Attachments D-1, D-la 
and D-lb for "Summary of MoneyMax System to Finance System Reconciliation 
Procedures", "Summary of MoneyMax System to Finance System Reconciliation 
Results for AU Tribes" and "Summary of MoneyMax System to Finance System 
Reconciliation Results for the Tribe", respectively). 



b. 



We reconciled Fiscal Year 1992 Bureau cash transactions reported by the US. Treasure 
areasury) to the Bureau's Finance System (General Ledger System Reconciliation) and 
reports submitted to ttie Treasury (Treasury Reporting Reconciliation). The ^suiting 
viiances were investigated for tribal trust funds (Appropriation 8365) and r«olved. to ^ 
the extent supporting documentation was provided by the Bureau (see Attachments D- 
D-2a and D-2b for "Summary of U.S. Treasury System to Finance System Reconcihahon 



'^ 0648 



Attachment B Part 1 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-7 Filed 08/11/2007 Page14of28 
Procedures", "Sun^»iar\- of U.S. Treasury System to Finan^ iystem Reconciliaticr 

Results for All Tnbes" and "Summary of US. Treasury System to Finance System 

ReconciUation Results for the Tnbe", respectively). 

6. n>p««t l^f Time 

We compared, for informational purposes only, the lag tune from the apparent date of 
receipt of fu.nds.(as defined in Attachmetrt^to the deposit date posted to ttie general 
ledger accounts and simtSunzed the resuirb^see AttachmeneTC c-1 arru c-2 rcr ~ 

"Summary of Deposit Lag Time Procedures", "Summary of Deposit Lag Time Results 
for All Tribes" and "Summary of Deposit Lag Time Results for the Tribe", respectively). 

7. Fill the Gap 

On a sample basis, we verified (Le., traced and agreed) receipt amounts posted to the 
general ledger to onginal lease agreements, sales agreements, contracts, permits or other 
documentation as appropriate, to the extent provided, to determme diat the amounts 
received and the allocation of such amounts to general ledger accoimts were properly 
recorded based on such dooxmentation (see Attachments F, F-1, F-2 and F-3 for 
"Summary of Fill the Gap Procedures", "Summary of Fill tiie Gap Results for All 
Tribes", "Summary of Surface Lease Results for the Tribe" and "Summary of Timber 
Sales Results for the Tribe", respectively, if applicable). 

Because the above procedures do not constitute an audit made in accordance with generally 
accepted auditing standards, we do not express an opinion on any of the elements referred 
to above. Had we performed additioiwl procedures or had we made an audit of the 
financial statements of the Trust Fiiids managed by Ae Bureau in accordance with 
generally accepted auditing standards, other matters might have come to our attenhon that 
would have been reported to you. Fxirther, it is beyond oiu- professional competence to 
provide advice regarding legal matters. Accordingly, we cannot and do not make any 
representations regarding any legal issues raised in cortjunction with performing our 
procedures. This report relates only to the elements specified above and does not extend to 
any financial stotements of the Trust Funds managed by the Bureau taken as a whole. 

This report is solely for die information of ttie Bureau to assist the Bureau in determining 
vsrtiether ttie objective described in the second paragraph of this report has been met and is 
not to be used, referred to or distributed for any oti\er purpose. 



Qi,^c(>MA.(2*'^^^'^*»^'-^ 



Albuquerque, New Mexico 
December 31, 1995 



0649 
Attachment B Part 1 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-7 Filed 08/11/2007 Page15of28 



Enclosure II 



0650 
Attachment B Part 1 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-7 Filed 08/11/2007 Page16of28 



Sample Agreed-Upon Procedures and Findings Report 



0651 
Attachment B Part 1 to Boswell Declaration 



sASoEB 1:06-cv-01897-JR Document,26-7 Filed 08/11/2007 Page17of28 

ForDUo-.l«.P«rp— only ARTHUR ANDERSEN LLl 



U^. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONaLIATION PROJECT 

AGREED-UPON PROCEDURES AND HNDINGS REPORT 

FOR 

SAMPLE 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 



.-— "^".' 









'■--■.. -^.vf— ■?:-*■■'-=" .v'-.:,!:" -irT^; -•^ .."^ . 






--*<«'' 'T.-'^-ik^ 



Attachment B Part 1 to Boswell Declaration 



Case^;g^-L9v-01897-JR Document 26-7 Filed 08/11/2007 Page 18 of 28 

For Ducuaaion Furpoaes Only 

US. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 
SAMPLE 
JULY 1, 1972 THROTGH SEPTEMBER 30, 1992 

Table of Contents 

Agreed-Upon Procedures and Findings Report of Independent Public Accountants 

Attachments 

Summary of Basic Reconciliation Procedures A 

Summary of Basic Reconciliation Results for All Tribes A-1 

Summary of Basic Reconciliation Results for the Tribe A.-2 

Suntunauy of Basic Reconciliation Disbursement Transaction Results for tiie Tribe A-3 

Summary of Proposed Date Changes for the Tribe A-* 

Summary of Investment Yield Analysis Procedures B-1 

Summary of Investment Yield Analysis Results for the Tribe ^^^ 

Summary of Treasury Interest Recalculation Procedures B-2 

Summary of Treasury Interest Recalculation Results for the Tribe .*-^ B-2a 

Summary of Pro Forma Procedures ^^ 

Summary of Pro Forma Results for tiie Tribe B-3a 

Sununary of Analytical Review Procedures C 

Analyticjd Review Graphs for the Tribe (if applicable) C-1 

Summary of Analjrtical Review Procedures and Reportable Conditions for the Tribe (if applicable) C-2 

Summary of MoneyMax System to Finance Ssrstem Reconciliation Procedures D-1 

Summary of MoneyMax System to Finance S5rstem Reconciliation Results for All Tribes D-la 

Summary of MoneyMax System to Finance System Reconciliation Results for the Tribe D-lb 

Summary of VS. Treasury System to Finance System Reconciliation Procedures D-2 

Summary of US. Treasury S)rstem to Finance System Reconciliation Results for All Tribes D-2a 

Summary of US. Treasury System to Fiiumce System Reconciliation Results for the Tribe D-2b 

Summary of Deposit Lag Time Procedtires E 

Summary of Deposit Lag Time Results for All Tribes E-^ 

Suirraiary of Deposit Lag Time Results for the Tribe E-2 

Summary of Fill the Gap Procedures F 

Summary of Fill the Ga:p Results for All Tribes F-^ 

Summary of Surface Lease Results for the Tribe (if applicable) F-2 

Sunmiary of Timber Sales Results for tiie Tribe (if applicable) F-3 



0653 
Attachment B Part 1 to Boswell Declaration 



CasesK0a-ev-O1897-JR Document 26-7 Filed 08/11/2007 Page 19 of 28 

ForDi«««io„p„,po«.o„i> Arthur Andersen LLi 



Agreed-Upon Procedtires and Findings Report of 
Independent Public Accountants 



To 'lit U£. Department of the Lii:£:criv3 






At your request, and in accordance with tiie US. Departn-ent of die Interior, Bureau of Indian 
Affairs (the Bureau) contract number CMK00129395, as modified at various dates (the 
Contract), we have performed the following agreed-upon procedures (see items numbered one 
(1) through seven (7) below) witii respect to the Tribal Trust accoimt transactions of the 
SAMPLE (fl\e Tribe) for die period from July 1, 1972 (Fiscal Year 1973) through September 30, 
1992 (Fiscal Year 1992) (i.e„ reconciliation period), except as otherwise noted. As a result of 
applying the agreed-upon procedures, findings were noted (see Attachments A through F-3 for 
detail of findings). 



The Congressional mandate for the Bureau Tribal Trust Funds Reconciliation Project 
(Reconciliation Project) requires an accounting to each Tribe for each of their Tnxst accounts. 
The primary objective of the Reconciliation Project, as stated in the Contract, is to reconstruct 
historical transactions, to the extent practicable, for all years for which records are available for 
all Tribal Trust accounts managed by the Bureau. Phase I of the Reconciliation Project 
substantiated that not all records would be available for a full accotmting of such funds. Ehie to 
the unavailability of some records, the scope of ttie Reconciliation Project is designed to provide 
reasonable assurance as to the accuracy of each TribaiTrust account balance. The agreed-upon 
procedxu-es performed, as required by the Contraa,'represent die Bureau's standard of 
reasonableness. 

Below are simunaries of the agreed-upon procedures applied. Attachments A through F-3 
further detail certain procedm-es, findings and reportable conditions and are incorporated by 
reference into this report. Attachments A dirough F-3 include information marked 
"Supplemental bifonnation" which has been included at the Biu-eau's request to further clarify 
the report This supplemental information has not been subjected to the agreed-upon 
procedures described below. 

Source documents used in performing all of the following agreed-upon procedures were 
obtained by the Bureau and provided to us for reconciliation purposes. The Bureau has 
advised us tiiat not all of die source documents for the reconciliation period could be located. 
The number and percentage of transactions that were reconciled to source documents are 
shown in Attachments A-1 and A-2, "Summary of Basic Reconciliation Results for All Tribes" 
and "Simimary of Basic Reconciliation Results for the Tribe", respectively. 

1. Account Statements 

We prepared account statements including detail of transactions, balances, results of 
reconciliations and proposed adjustments using Bureau provided financial records. The 
accompanying Tribal account statements should be read in conjunction with this report. 



0654 
Attachment B Part 1 to Boswell Declaration 



CaseS|A®€Lgv-01897-JR Document 26-7 Filed 08/11/2007 Page 20 of 28 

For Discuaaion Puiposes Oiu, 

The accompanying statements do not include award accoimts with multiple tribal 
beneficiaries for the period the award was undistributed. Such statements have been 
delivered to the Bureau for appropriate dissemination. 

2. Basic Reconciliation 

We performed tiie fo'^Ot-visfj prfv-o'^vr«^.*-'^T'^"''-.'r-"?'>_'?:idividn&l arro'f^t trarssactiors: 

a. Receipts - We verified (Le., traced and agreed) non-investment receipts posted to 
each of the Tribe's accounts, to title extent source documentation was provided, as to 
amount, date and accoimt number to deposit tickets and/ or related collection 
vouchers, joun\al vouchers and/ or other relevant collection documentation (see 
Attachments A, A-1 and A-2 for "Summary of Basic Reconciliation Procedures", 
"Siunmary of Basic Reconciliation Results for All Tribes" and "Simunary of Basic 
Reconciliation Results for the Tribe", respectively). 

b. Disbursements - We verified (i.e., tiaced and agreed) non-investment disbursements 
posted to each of the Tribe's accounts, to the extent source documentation was 
provided, as to amount, date and account number to VS. Treasmy ("Treasury") 
processed SF1166 documents (Voucher and Schediile of Payment), Treasury reports 
(GOALS) of processed SFll66's, journal vouchers and/ or other relevant 
disbursement documentation. We also verified (i.e., traced and agreed), to the extent 
source documentation was provided, the posted disbursement transactions as to 
amoimt date and account number to the requests for withdrawal from the Tribe 
and/ or the Bureau (see Attachments A, A-1, A-2 and A-3 for "Simimary of Basic 
Reconciliation Procedures", "Summar}' ot Basic Reconciliation Results for All 
Tribes", "Summary of Basic Reconciliation Results for the Tribe" and "Stimmary of 
Basic Reconciliation Disbursement Transaction Results for the Tribe", respectively). 

c. Investment Transactions - We also performed procedures similar to 2a and 2b above 
for certain investment transactions (i.e., purchases and maturities) in Fiscal Years 
1986 through 1991. However, tiiese procedxires were discontinued and these 
transactions were tested through alternative procediu'es such as Investment Yield 
Analysis and Treasury Interest Recalculation (see Attachments B-1, B-la, B-2 and B- 
2a for "Summary of Investment Yield Analysis Procedures", "Summary of 
Investment Yield Analysis Results for the Tribe", "Summary of Treasury Interest 
Recalculation Procedures" and "Summary of Treasury Interest Recalculation Restdts 
for the Tribe", respectively). 

3. Investment Analysis 

The following procedures were appUed to Fiscal Years 1978 through 1992. General ledger 
income/cost codes needed to determine whether a transaction is interest related were 
not available for years prior to Fiscal Year 1978 and, therefore, interest receipts could not 
be identified for comparison. 

a. Investment '^eld Analysis - We calculated annual investment interest yields on each 
of the Tribe's accounts and compared to the Aimual Tribal Fund Benchmark rates 
(Benchmark) (see Attachment B-1) to identify potential errors in interest earnings. 
We investigated imusual fluctuations from ttie Benchmark parameters (see 
Attachment B-1 for discussion of parameters) to determine whether amounts were 
properly posted. This analysis also provides information to Tribes as to the 

-2- 
Attachment B Part 1 to Boswell Declaration ^^'^'^ 



Case f;9«P^-01897-JR Document 26-7 Filed 08/11/2007 Page 21 of 28 

For DiscuMion PunxMca On 



perfonn^ce Of tiieir specific accounts compared to the Tribal Trust Fund as a whole 
as reported by the Bureau (see Attachments B-1 and B-la for "Summary of 

-,.,„, I ,, r^ ' '^'a* *»---- ---oy ti;e ixiDfe on trie daily 

cash balance m ^ch of the Tribe's Trust accounts using the appUcable Treasury 
mterest rates and daJy balances provided by the Bureau (see Attachments B-2 and B- 
2a for Siunmaiy of Treasury Interest Recalculation Procedures" and "Summary of 
Treasury Interest Recalculation Results for the Tribe", respectively). 

'■ ^.^r^.^T' ^^*^°"* - ^^ Perfonned, for informational purposes only, pro forma 
c^oiktions of mter^t income on uninvested hmds for Fiscal Years 1978 through 
iTci °h t^" Tnbe^s Trust accounts. IWs calculation is an estimate of whaf 
might have been earned had uninvested funds yielded returns comparable to the 
Benchmark rates. -Hte calculation is an automated calculation of mte^^st »^as-d on 
Bm-eau provided general ledger reported balances and the Benchmark rates (see * 
At^chments B-3 and B-3a for "Summary of Pro Forma Procedures" and "Sum^ 
of Pro Forma Results for the Tribe", respectively). 

4. Analytical Review 

We prepared graphs for non-investment and non-judgment receipt and disbursement 

foTA'^Z^Z^'!^^^'' ^/i^^"^-' ^2F:^— y oi Basic Reconciliation Results 
V J^^ . Summary of Basic Reconciliation Results for the Tribe") for Fiscal 

TZ^TfpXt)^^^''"'"^'"^^*^ 

In addition, for fifteen (15) tribes selected by the Bureau, we investigated unusual 
fluctuabOTs m receipts and disbursements activity (see Attachment C-2 for "Summary of 
Analytical Review Procedures and Reportable Conditions for the Tribe", if appUcable). 

5- Systems Reconciliation 

a. We reconciled ttie MoneyMax System (Bureau investment subsidiary detail) 

T?^* ^^""^ *° *« Fi^^^e System (general ledger) investment balances for 
aU Tnbes as of September 30, 1992, with the exception of certain investment • 
fransactions affecting several tiibes which were reconciled internally by the Bureau 
Any adjustinents resulting from such intenial reconciliations are not reflected in this 
report or m the accompanying Tribal account statements (see Attachments D-1 D-la 
and D-lb for "Summary of MoneyMax System to Finance System Reconciliatio'n 
Procedi^es , "Summary of MoneyMax System to Finance System Reconciliation 
Results for AU Tribes" and "Summary of MoneyMax System to Finance System 
Reconciliation Results for the Tribe", respectively). 

b. We reconciled Fiscal Year 1992 Bureau cash fa-ansactions reported by the U S Treasury 
(Treasury) to the Bureau's Finance System (General Ledger System Reconciliation) and 
reports submitted to the Treasury (Treasury Reporting Reconciliation). The resulting 
variances were mvestigated for tiibal bust funds (Appropriation 8365) and resolved, to 
Ae extent supporting documentation was provided by the Bureau (see Attachments D-2, 
D-2a and D-2b for Summary of US. Treasury System to Finance System Rpror,Hi«««^ 

-3- 

Attachment B Part 1 to Boswell Declaration ^^^^ 



CaseAl^fifrcv-01897-JR Document 26-7 Filed 08/11/2007 Page 22 of 28 

For Diccuacion Purposes Only 

Procedures", "Summary of US. Treasuiy System to Finance System Reconciliation 
Results for All Tribes" and "Siunmary of U.S. Treasury System to Finance System 
Reconciliation Results for the Tribe", respectively). 

6. Deposit Lag Time 

V/c compared, for infonnat!:.'K>_Lil-r'iT"C'''^-r'~V.^»*'b'' ^a-? "— ■"^.^'-rn ^h** TnoTonf "ia^tc of 
receipt of funds (as defined in Attachment E) to the deposit date posted to the general 
ledger accoimts and summarized the results (see Attachments E, E-1 and E-2 for 
"Summary of Deposit Lag Time Procedures", "Summary of Deposit Lag Time Results for 
All Tribes" and "Summary of Deposit Lag Time Results for the Tribe", respectively). 

7. Fill the Gap 

On a sample basis, we verified (i.e., traced and agreed) receipt amounts posted to the 
general ledger to original lease agreements, sales agreements, contracts, permits or other 
documentation as appropriate, to the extent provided, to determine that the amoimts 
received and the edlocation of such amounts to general ledger accounts were properly 
recorded based on such docmnentation (see Attachments F, F-1, F-2 and F-3 for 
"Summary of Fill the Gap Procedures", "Summary of Fill the Gap Results for All Tribes", 
"Summary of Surface Lease Results for die Tribe" and "Summary of Timber Sales Results 
for the Tribe", respectively, if applicable). 

Becaxise the above procedures do not constitute an audit made in accordamce with generally 
accepted auditing standards, we do not express an opinion on any of the elements referred 
to above. Had we performed additional procedures or had we made an audit of the 
financial statements of the Trust Funds managed by the Bureau in accordance with generally 
accepted auditiag standards, other matters might have come to our attention that would 
have been reported to you. Fmther, it is beyond our professional competence to provide 
advice regarding legal nuitters. Accordingly, we cannot and do not make any 
representations regarding any legal issues raised in conjimction wifli performing our 
procedures. This report relates only to the elements specified above and does not extend to 
any financial statements of the Trust Fimds managed by the Bureau taken as a whole. 

This report is solely for die information of the Bureau to assist the Bureau in determining 
whether the objective described in the second paragraph of this report has been met cmd is 
not to be used, referred to or distributed for zmy other purpose. 



Albuquerque, New Mexico 
December 31, 1995 



0657 
-4- 

Attachment B Part 1 to Boswell Declaration 



,^,^g7-JR Document 26-7 Filed 08/11/2007 Page 23 of 28 

ATTACHMEhTT A 
Paee 1 of 2 
U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 
TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 
SUMMARY OF BAS IC RECONCnjATION PROCEDURES 

PROCEDURES 

We perfonned tiie following procedures to reconcile individual account transactions: 

a. Receipts - We verified (i.e., traced and agreed) non-investment receipts posted to each of 
the Tribe's accounts, to the extent source documentation was provided, as to amount, date 
and account number to deposit tickets and/or related coUection vouchers, journal 
vouchers and/ or other relevant collection documentation. 

b. Disbursements - We verified (ie., traced and agreed) non-investment disbursements 
posted to each of the Tribe's accounts, to the extent source documentation was provided, 
as to amount date and account number to U^. Treasury ("Treasury") processed SF1166 
documents (Voucher and Schedule of Payment), Treasury reports (GOALS) of processed 
SFll66's, journal vouchers and/ or ofter relevant disbursement documentation We also 
verified (i.e., traced and agreed), to the extent source documentation was provided, the 
posted disbursement transactions as to amount, date and account number to the requests 
for withdrawal from the Tribe and/or tfie Bureau. 

c Exceptions - As a result of applying die above procedures, differences were noted 
between the source document(s) and the posting to the general ledger. 

Exceptions fell into one (1) of four (4) basic categories. 

1. Qeared Exceptions - Exceptions resolved (cleared) through additional foUow-up 
and/or obtaining additional supporting documentation. These items did not result in 
proposed adjustments. 

2. Proposed Adjustments - Exceptions identified in the reconciliation process that 
through additional follow-up and discussions with the Bureau, it was determined that 
an error occurred restilting in a misstatement of the account. With Bureau 
concurrence, adjustments were proposed for these items. 

3. Passed Adjustments -Exceptions identified in the reconciliation process tiiat were not 
approved for adjustment by the Bureau. Altfiough no requested additional 
supporting documentation could be provided, the Bureau concluded that a 
subsequent correction was made to the account, or the exception is no longer valid 
based on the Bureau's review of the account statement, other general ledger reports, 
or knowledge of tfie accoimting system. 

4. Scoped Adjustments - Exceptions identified in the reconciliation process tiiat were 
detennined to be insigitificant by the Bureau (less than or equal to $1,000 each). At 
the Bureau's direction, no additional follow-up procedures were performed. 



0658 
-5- 

Attachment B Part 1 to Boswell Declaration 



For^ 



Gas§*!^p-cv-01897-JR Document 26-7 Filed 08/11/2007 Page 24 of 28 

r IJiacuMion PurpoMS Only ^ 

ATTACHMENT A 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 



Page 2 of 2 



•~*r%.i-rkjL^ <M*N. 



JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 
SUMMARY OF BASIC RECONCILIATION PROCEDURES 

d. Investment Transactions - We also performed the procedures described in a and b above 
for certain investment transactions (i.e., purchases and maturities) in Fiscal Yeats 1986 
through 1991. However, these procedures were discontinued and these transactions were 
tested through alternative procedures such as Investment Yield Analysis and Treasury 
Interest Recalculation (see Attachments B-1, B-la, B-2 and B-2a for "Summary of 
Investment Yield Analysis Procedures", "Summary of Investment Yield Analysis Results 
for the Tribe", "Summary of Treasury Interest Recalculation Procedures' and "Summary 
of Treasury Interest Recalculation Results for the Tribe", respectively). 

SUPPLEMENTAL INFORMATION 

The objectives have been included here as supplemental information to the reader. No conclusions 
have been made regarding the achievement of these objectives by applying Ae agreed-upon 
procedures. 

Contract Obfectives 

The primary objective of the reconciliation project was to reconsfaiict historical transactions, to tiie 
extent practicable, for all years where records were available for all Tribal Trust accounts managed by 
the Bureau. 

Objectives 

• To ensure all receipt and disbursement activity recorded in the Tribe's Tribal Trust accounts, for 
which documentation is available, is properly reflected and supported. 

• To ensure all receipts and disbursements made, for which dociunentation is available, were 
properly recorded to the appropriate Tribal Trust account 

FINDINGS 

See Attachments A-1, A-2, A-3 and A-4 for "Summary of Basic Reconciliation Results for All Tribes", 
"Summary of Basic Reconciliation Results for the Tribe", "Summary of Basic Reconciliation 
Disbursement Transaction Results for tiie Tribe" and "Summary of Proposed Date Changes for the 
Tribe", respectively. 

Adjustments 

Any resulting adjustments affecting the Tribe's Trust Accounts are reported in the accompanying 
Tribal Account Statements and referenced to the adjustment number identifying tfie relevant 
supporting documents that have been imaged and will be provided to the Tribe separately on compact 
disk. 



Attachment B Part 1 to Boswell Declaration 

-6- 0659 



Case ls9fiHQ.'p-0l897-JR 

For Diacuaaion Puipoae* 0> 



Document 26-7 Filed 08/1 1 /2007 Page 25 of 28 



ATTACHMENT A-1 
Page 1 of 1 



U.S. DEPARTICm- OF THE IMTERIOR 
BUREAU OF INDIAN AFFAIRS 

TPiFAL "^;?rr '^•^s ^o^f^^iimoN pnojECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF BASIC RECONCILIATION RESULTS FOR 
ALL TRIBES 



The following sunmarizes the results of the reconciliation of the posting of source documents performed as 
part of the Basic Reconciliation Procedures. Reconciled investment transactions represent those reconciled 
early in the reconciliation process. Investment transactions were tested through alternative procedures 
such as Investment Yield Analysis and Treasury Interest Recalculation. The following schedule represents 
absolute dollar coverage (the sum of the gross value of all transactions without consideration of 
mathematical plus (+) and minus (-) sign) for the entire reconciliation period. 



Non- Investment Transactions 
Reconciled 
Unreconciled 



Investment Transactions 
Reconciled 
Tested Through Alternative Procedures 



Total 



Transactions 


Percent 


Absolute Dollars 


Percent 


218.531 
32.901 


87 X 
13 X 


$15,333,094,983 
$2,411,574,165 


86 X 

14 X 


251.432 


100 X 

16 X 
84 X 


$17,744,669,148 


100 X 


65.267 
335.146 


$21,306,350,015 
$67,210,929,523 


2AX, 
76 X 


400.413 


100 X 
100 X 


$88,517,279,538 


100 X 


651,845 


$106,261,948,686 


100 X 



Note: 



Treasury interest transactions are excluded fro« this schedule (see Attachwnts B-Z and B-2a for SuN*ary of 
Treasury Interest Recalculation Procedures and Suwary of Treasury Interest Recalculation Results for the 
Tribe, respectively). 



Attachment B Part 1 to Boswell Declaration 

-7- 



0660 



£aae^f^^£v-01897-JR Document 26-7 Filed 08/11/2007 Page 26 of 28 

ForUiaciusion Purpoces Oi. ^ 



ATTACHMENT A-2 
Page 1 of 1 



U.S. DEPAR7I€NT OF THE INTERIOR 
BUREAU OF INDIAN AFFAIRS 
TWBAL TRII<T ,"JMnq Bfrmn>UTjr»i PRO^rrr _^ 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30. 1992 

SUMMARY OF BASIC RECONCILIATION RESULTS FOR 
THE TRIBE 



-The-following sunmarizes the results of the reconciliation of the posting of source documenti performed as 
part of the Basic Reconciliation Procedures. Reconciled investment transactions represent those reconciled 
early in the reconciliation process. Investment transactions were tested through alternative projedures 
such as Investment Yield Analysis and Treasury Interest Recalculation. The following schedule represents 
absolute dollar coverage (the sun of the gross value of all transactions without consideration of 
mathematical plus {+) and minus (-) sign) for the entire reconciliation period. 



4.939 100 X 





Tr 


'ansactions 


Percent 

95 X 
5 X 


Absolute Dollars 


Percent 


Non- Investment Transactions 
Reconciled 
Unreconciled 


2.224 

113 


$120,303,357 
$2,723,329 


98 X 
2 X 






2.337 


100 X 

20 X 
80 X 


$123,026,686 


100 X 


Investment Transactions 
Reconciled 
Tested Through Alternative 


Procedures 


973 
3.966 


$107,937,426 
$399,960,452 


21 * 
79 X 



$507,897,878 



100 X 



Total 



7.276 100 X 



$630,924,564 



100 X 



Note: Treasury Interest transactions are excluded fro« this schedule (see Attachnwnts B-2 and B-2a for Sutwry of 
Treasury Interest Recalculation Procedures and SuBwry of Treasury Interest Recalculation Results for the 
Tribe, respectively). 



Attachment B Part 1 to Boswell Declaration 



0661 



Case sweetev-0 1 897-J R 

for Discuaaion Purposes Only 



Document 26-7 Filed 08/1 1 /2007 Page 27 of 28 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TTIUST FUNDS RECONCILIATION PROJECT 



ATTACHMENT A- 3 
Page i of 1 



AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30. 1992 

SUMMARY OF BASIC RECONCILIATION DISBURSEMENT TRANSACTION RESULTS FOR 

THE TRIBE 



At the request of the Bureau, codes were assigned to reconciled disbursement transactions indicating the 
level of supporting documentation. All transactions with an alpha code (disbursement code) assigned are 
reconciled transactions. An unreconciled transaction indicates that we were not provided with all 
documents necessary to verify (i.e.. trace and agree) the transaction to the general ledger. 



Disbursement CodeCs) 

C 

L 

G 

GL 

JL 

JLZ 

Other 

Total Reconciled 

Unreconciled 

Total Disbursements 



Transactions 

126 
103 
8 
16 
7 
8 
7 

275 

35 

310 



Amount 



($24,382,389.10) 

($13,831,918.46) 

($2,678,679.58) 

($5,367,062.37) 

($735,130.51) 

($32,681.29) 

($681,358.28) 



($47,709,219.59) 



$158,505.27 



($47,550,714.32) 



Disbursetient Reconciliation Code Legend 

C ■ The coaplete disburseaent voucher package was reconciled. 

G - Transaction did not have a Treasury staip to indicate the SF1166 cleared Treasury. 

J - Oocuaent contained Insufficient accounting infonution (i.e.. appropriation nu*ers were not on docuaentation) . 

Tribal identification and reference tables were used to verify posting. 
L - The disburseaent was to the Tribe in care of Superintendent or third party (Bank) and did not have both Tribal and 

other govemaental signed authorization. 
Z - Additional third party docuaents were provided that support the disburseaent transaction. 

Other - Represents other reconciliation code coabinations. 



Attachment B Part 1 to Boswell Declaration 



-9- 



0662 



^ase^'Ve^iifv-Oiagy-J^ Document 26-7 Filed 08/11/2007 Page 28 of 28 

For Diacuwion PunxMes Onlv 



AnACHMENT A-4 
Page 1 of 1 



U.S. 0EPAR7>€NT OF THE INTERIOR 
BUREAU OF INDIAN AFFAIRS 
TRIBAL^TRUST Pi?S£*°SC?H(>!-'-^*:^-^'>»S".^ 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30. 1992 

SUMMARY OF PROPOSED DATE CHANGES FOR THE TRIBE 
FISCAL YEARS 1973 TO 1977 





Number of 




Absolute Dollar Value 


Number of 




Transacti( 


3ns 


of Transactions 


Days Difference 


Due from Tribe 




2 


$148,584.97 


1 to 3 









$.00 


4 to 6 









$.00 


7 to 10 









$.00 


11 to 30 






3 


$44.40 


^^ore than 30 


Total Due from Tribe 




5 




Due to Tribe 




3 


$398,550.79 


1 to 3 









$.00 


4 to 6 









$.00 


7 to 10 









$.00 


11 to 30 






2 


$22.20 


More than 30 



Total Due to Tribe 



Compounded Interest Effect 
(Proposed Adjiistmentmr" 



($132.91) 
$.00 
$.00 
$.00 
($14.17) 

($147.08) 

$731.93 

$.00 

$.00 

$.00 

$7.08 

$739.01 



Total Adjustment 



10 



$591.93 



(1) Represents the interest iipact fro. the effective date of the proposed date change through Septe*er 30. 1994. 
The interest iipact was calculated based on Bureau provided Benchwirk rates (see Attachiwnt B-1) which are based 
on the overall yield of the Invested pool and assuKS annual cooipounding. Benchwrk rates may not be representa- 
tive of any single tribe's actual investi«nt yields. 

Note: Proposed date changes subsequent to fiscal year 1977 are included in the Suinary of Treasury Interest 
Recalculation Results for the Tribe (see Attachment B-2a). 



Attachment B Part 1 to Boswell Declaration 

-10- 



0663 



Case 1:06-cv-01897-JR Document 26-8 Filed 08/11/2007 Page lot 44 



ATTACHMENT B 



TO BOSWELL 



DECLARATION 



PART 2 



• 



Case5/iN»6ECv-01 897-JR Document 26-8 Filed 08/1 1/2007 Page 2 of 44 

For Diacusaion Purposes Only 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONOLD^TION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

POR 

~" SAMPuf^ 

JULY 1, 1972 THROUGH SEPTENfBER 30, 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS PROCEDURES 



PROCEDURES 

The following procedures were applied to Fiscal Years 1978 through 199Z General ledger income/ cost 
codes needed to determine whether a transaction is interest related were not available for years prior to 
Fiscal Year 1978 and, ttierefore, interest receipts could not be identified for comparison. 

We calculated armual investment interest yields on each of the Tribe's accoimts and compared to the 
Annual Tribal Fund Benchmark rates (Benchmark) (see Attachment B-1, page 5 of 6) to identify 
potential errors in interest earnings. We investigated unusual fluctuations from the Benchmark 
parameters (see below for discussion of parameters) to determine whether amounts were properly 
posted. This analysis also provides information to Tribes as to the performance of their specific 
accounts compared to the Tribal Trust Fimd as a whole, as reported by the Bureau. 

Below is a summary of detailed procedures aonlied to Investment Yield Analysis. 

• We calculated interest )deld for each appropriation for each fiscal year based on total interest 
postings to the general ledger for the year divided by the average daily invested balance. 

• We compared tiie calculated yield to a benchmark rate. Benchmarks for each year were provided 
by tiie Bureau and were based upon the overall yield of all Tribes' investments for a particular fiscal 
year. A tolerable range of variation from the benchmark rate was established by die Bureau. We 
reviewed account detail and/ or investment detail and source documentation as necessary to 
investigate the potential for error and/ or explain tiie variation for accounts with variations from tf»is 
established tolerance. The tolerance was established as follows: 

o a calculated yield no less than the benchmark rate - 2% or 

o a calculated yield no greater than Ae benchmark rate +5% and 

o a calculated dollar impact of the variance greater than $1,000. 

• We prepared an analysis which summarizes the yield by appropriation and by Tribe over the fifteen 
(15) year time period (Fiscal Years 1978 - 1992) and reviewed it for the purpose of identifying 
potential timing issues, etc. 

• We printed accoimt detail for all appropriations that produce variances outside the tolerable range. 

• We reviewed account detail in order to determine what might have caused the variance in the 
calculated )rield, such as: 

o Negative interest postings 

o Maturities posted witfjout interest 

o Interest p>osted without maturities 

o Unusually large interest postings 

Attachment B Part 2 to Boswell Declaration 

-11. 0664 



CasfeM4^^cv-01897-JR Document 26-8 Filed 08/11/2007 Page 3 of 44 

For Diacuaaion Purposes Only 

VS. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 
SUMMARY OF INVESTMENT YIELD ANALYSIS PROCEDURES 

• Timing differences, such as: 

o Investments maturing early in the fiscal year but purchased in the previous year 
o Investments purchased during the year but not maturing imtil subsequent yeais 

• Based upon our initial analysis of the detailed statement and the summarized yield report, we 
requested supporting documentation, when appropriate, from the Bureau to help resolve or 
explain the variance. 

SUPPLEMENTAL INFORMATION 

The objectives have been included here as supplemental information to the reader. No conclusions have 
been made regarding the achievement of ttiese objectives by applying the agreed-upon procedures. 

Contract Objectives 

The primary objective of the reconciliation project was to reconstruct historical transactions, to the 
• extent practicable, for all years where records were available for all Tribal Trust accounts managed by 
the Bureau. 

Objectives 

• To ensure that aU Tribal funds were invested, and if not, uninvested funds are identified to the 
extent possible for the account holder. 

• To ensure that investment balances are properly reflected for each Tribal account 

• To ensure interest earnings on invested funds are properly posted to Tribal accounts (interest 
reasonable). 

Other 

Investment purchases and maturities and interest transactions were initially part of the Basic 
Reconciliation procedures. However, at the Bureau's direction, Basic Reconciliation procedures for 
investment transactions were discontinued. The Bureau determined the tracing of these transactions to 
. internally prepared source documents was not accomplishing the primary objective of the reconciliation 
project, which was to determine if interest earned on investment transactions was properly reflected as a 
result of invested funds or funds available for investment 

The Bureau approved of the current procediues, which include calculation of yield on invested funds )o 

for comparison to Benchmark rates (i.e., yield analysis) in order to identify potential material errors. 

Initial Investment Yield Analysis was to be performed for twenty (20) Fiscal Years (1973 - 1992). 

However, general ledger income/ cost codes must be present to determine whether a transaction is 

investment related and whetiier it is a principal or interest posting. General ledger income/cost codes 

were not available for years prior to Fiscal Year 1978. As a result, the Bureau directed Artiuu Andersen 

LLP to perform Investment Yield Analysis procedures on Fiscal Years 1978 through 1992. 



o 



Attachment B Part 2 to Boswell Declaration "^^' 



fi.^e:3i!!li-Sjt«2i^T>"^^ Document 26-8 Filed 08/11/2007 Page 4 of 44 



VS. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 



JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 
SUMMARY OF INVESTMENT YIELD ANALYSIS PROCEnURFt; 



Below is a list of codes and respective descriptions to be used when reading Attachment B-la, 
"Summary of Investment Yield Analysis Results for the Tribe" . 

Code_ , Description 



A. Calculated variance feU within the tolerable range previously defined (see B-1, page 1 of 6). 

Variances that feU outside of the tolerable range described in Code A above were investigated The 
Codes below reflect the results of our investigation. 

B. We reviewed appropriate supporting documentation and found the variance to be timine 
related: ^ 

• Investinents matiiring ii. me current fiscal year related to tiie prior fiscal year(s) overstate 
mterest in the current year since interest is posted at matiirity. In addition, investinents 
held at year end which mahire in the foUowing year(s) understate interest since interest is 
not accrued. 

• Due to the absence of original b-ansaction dates in the general ledger, assumed dates were 
used based on the document reference or the reporting month (see accompanying account 
statements for more detail) for the calculation of yields. Through ftmher investigation, 
better b-ansaction dates were identified and the yields recalculated. When tiie timing 
differences are taken into account, yields are within tfie tolerable range. 

C We reviewed account detail and supporting documentation (Le., general ledger transaction 

detail MoneyMax/inveshnent reports, source documents), as appropriate, noting a 
misposting of eitiier the purchase, matiirity or interest The mispostings were subsequentiy 
corrected either by the client or as a propcwed adjustment in the Finance/MoneyMax 
reconciliation. Any effective date discrepancies affecting cash balances were considered in 
connection with Treasury interest recalculations. No adjustments were proposed. 

D. We reviewed appropriate supporting documentation and determined that tiie variance was 
due to a misposting not subsequentiy corrected. Appropriate adjustinents were proposed 
and either approved or unapproved (passed) by tiie Bureau. 

E. We reviewed appropriate supporting documentation and noted tiiat the variance stiU exists 
due to actual investments made at interest rates either below or above benchmark. No 
adjustments were proposed. 



Attachment B Part 2 to Boswell Declaration 

-13- 0666 



Fi?S§aj^?-u^4;£''(§97-JR Document 26-8 Filed 08/11/2007 Page 5 of 44 

U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 
SAMPLE 
^^ jI3LYl,t97nTKOUGnS-;^Y^niEK^v,rx^:»^'^ 

SUMMARY OF INVESTMENT YIELD ANALYSIS PROCEDURES 



Code Etescription 



F. We reviewed supporting documentation (Le., journal voucher) indicating no interest was 
posted due to one of the following reasons: 

• The appropriation was overinvested. 

• Interest was forgone on a buyout 

• No interest was accrued on a buyout 

No adjustments were proposed. 

G. We reviewed documentation and found it insufficient to complete tiie work on the 
appropriatioiL The Bureau was unable to provide additional sufficient documentation. No 
adjustments were proposed. 

H. We reviewed appropriate supporting documentation and found that the posting was made 

under an inaccurate element component category. For example, ottier receipts may have 
been posted as interest Taking into accoimt the misclassifications in recalculating the yield, 
yields fell within tolerable range and no adjustments were proposed. 

L We reviewed appropriate supporting documentation and found interest was posted to 

accounts otiier tium tiie accounts where tfie related purchases and mahuities of invesbnents 
were posted. The documentation provided by tfie Bureau supported such postings. No 
adjustments were proposed. 

J. We reviewed appropriate supporting documentation and found that banks where funds 

were invested went into conservatorship and no interest was received at maturity. The 
Bureau has informed us fcat interest from the date of closure to the date of posting has been 
credited to the appropriate accounts subsequent to September 30, 1991 Calculations of 
potential interest impact of these items was provided to the Bureau. No adjustments were 
projjosed. 



Attachment B Part 2 to Boswell Declaration 

-14- 0667 



Case l5a8HaiE-01897-JR Document 26-8 Filed 08/11/2007 Page 6 of 44 

For Diacuaaion Purposes Onl> 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 



JULY h 1972 THROUGH SEPTEMBER 30, 1992 



SUMMARY OF INVESTMENT YIELD ANALYSIS PROCEDURES 



The table below represents Benchmark rates provided by the Bureau and utilized in the work performed for 
Investment Yield Analysis and calculations of interest impact of proposed adjustments. These Benchmarks 
may not be representative of any single Tribe's actual investment yields. 



Annual Tribal Fund Benchmark Rates 



Fiscal Year Ended 


Rates 


06/30/73 


7.04% 


06/30/74 


8.48% 


06/30/75 


9.19% 


06/30/76 


6.64% 


09/30/76 


6.64% 


= 99/30/77 


6.43% 


09/30/78 


7.67% 


09/30/79 


10.41% 


09/30/80 


12.04% 


09/30/81 


14.74% 


09/30/82 


14.48% 


09/30/83 


10.88% 


09/30/84 


10.54% 


09/30/85 


10.17% 


09/30/86 


836% 


09/30/87 


7.42% 


09/30/88 


7.60% 


09/30/89 


8.90% 


09/30/90 


8.78% 


09/30/91 


7.68% 


09/30/92 


6.80% 


09/30/93 


6.14% 


09/30/94 


6.23% 



Attachment B Part 2 to Boswell Declaration 



-15- 



0668 



Cas«Mkej£-cv-01897-JR Document 26-8 Filed 08/11/2007 Page 7 of 44 

For Diacuaaion Purpoaea Only 

U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 
SUMMARY OF INVESTMENT YIELD ANALYSIS PROCEDURES 

The following is a column by column description for "Summary of Investment Yield Analysis Results 
for the Tribe" (see Attachment B-la). 

Fiscal Year - The period from October 1 to September 30. 

Average Daily Invested Balance - Average dollars invested on a daily basis for the fiscal year. 

Total Earned Interest Posted on Investments - Actual posted interest to the general ledger for a 
particular appropriation for the fiscal year. 

Calculated Yield - Calculation based on "Total Earned Interest Posted on Investments" divided by 
the "Average Daily Invested Balance". 

Benchmark - Bureau provided annual yield based on the overall yield for all tribes' investments. 

Variance - Difference between "Calculated Yield" and "Benchmark". 

Calculated Variance - "Variance" multiplied by the "Average Daily Investe-d Balance". 

Disposition - Relevant codes described above. 

Average Annual Invested Balance - Sum of "Average Daily Invested Balance" divided by the 
number of years reviewed. 

Average Annual Interest Posted - Sum of "Total Earned Interest Posted on Investments" divided 
by the number of years reviewed. 

Weighted Average Yield - "Average Annual Invested Balance" divided by "Total Earned Interest 
Posted on Investments". 

Weighted Average Benchmark - The siunmation for each fiscal year reviewed of calculated 
benchmark interest ("Benchmark" X "Average Daily Invested Balance") divided by the number of 
years reviewed, divided by the "Average Aimual Invested Balance". 

Note 1: Data is only reflected for those fiscal years in which an accoimt had activity. 

Note 2: Principal and related interest accounts, if applicable, were combined (i.e., all 7XXX and 9XXX 
accounts) for the calculations. The accounts were combined for all years of the analysis. 

FINDINGS 

See Attachment B-la for "Summary of Investment Yield Analysis Results for the Tribe". 

Adjustments 

Any resulting adjustments affecting the Tribe aie reported in the accompanying Tribal Account 
Statements. 

Attachment B Part 2 to Boswell Declaration 

-16- 0669 



1897-JR Document 26-8 Filed 08/11/2007 Page 8 of 44 



U.S. DEPARTMENT OF TIC INTERIOR 
BUREAU OF INDIAN AFFAIRS 
TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPOrF 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30. 1992 

SUMMARY OF INVESTWENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 



Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Combined for this Analysis. 



Fiscal 


Average Daily 


Total Earned Interest 


Calculated 








Disposition 


Yesr 


Invested Balance 


Posted on Investaents 


rield 


Senchaart: 


Variance 


Calculated Variance 


(refer to 8-1) 


1978 


S30.084.97 


$1,516.90 


5.04 X 


7.67 X 


(2.63)» 


($791.23) 




1979 


S30.969.63 


$3,936.27 


12.71 » 


10.41 * 


2.30 } 


$712.30 




19B0 


$34,996.55 


$3,627.21 


10.36 X 


12.04 X 


{1.68)t 


($587.94) 




1981 


S130.928.51 


$17,452.17 


13.33 X 


14.74 X 


C1.41)» 


($1,846.09) 




1982 


1416.018.83 


i56. 448.87 


13.57 X 


14.48 X 


(.91)t 


($3,785.77) 




1983 


$415,803.19 


$43,095.33 


10.36 X 


10.88 X 


(.52): 


($2,162.18) 




1984 


$1,072,889.22 


$115,490.76 


10.76 t 


10.54 : 


.22 X 


$2,360.36 




1985 


$1,491,680.37 


$116,845.86 


7.83 X 


10.17 X 


(2.34)X 


($34,905.32) 




1986 


$1,372,735.02 


$142,095.45 


10.35 X 


8.36 X 


1.99 X 


$27,317.43 




1987 


$1,169,566.20 


$81,645.55 


6.98 X 


7.42 X 


(.44)X 


($5,146.09) 




1988 


$473,673.35 


$36,894.67 


7.79 X 


7.60 X 


.19 X 


$899.98 




1989 


$236,648.98 


$24,068.00 


10.17 : 


8.90 X 


1.27 X 


$3,005.44 




1990 


$16,775.58 


$1,495.29 


8.91 X 


8.78 X 


.13 * 


$21.61 





Sumnary for this Account 



Average Annual Invested Balance $530,213.11 

Average Annual Interest Posted $49,585.56 

Weighted Average Yield 9.35 X 

Weighted Average Benchmark 9.57 J 



Attachment B Part 2 to Boswell Declaration 

-17- 



06 7n 



ffiEj^^7-JR Document 26-8 Filed 08/11/2007 Page 9 of 44 



U.S. DEPARTierr of -mE interior 

BUREAU OF INDIAN AFFAIRS 
TRIBAL TRUST FUNDS RECONCILIATION PROJECT 



AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30. 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 



Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Contined for this Analysis. 

Fiscal Average Daily Total Earned Interest Calculated 



Disposition 



Year Invested Balance Posted on Invest.ents Yield Bench. ark Variance Calculated Variance (refer to B-1) 



1992 $2,730,484.10 $80,340.46 2.94 X 6.80 X (3.86)X 



($105,396.69) BE 



Summary for tt ,:; Account 



Average Annual Invested Balance $2,730,484.10 

Average Annual Interest Posted J80.340.46 

Weighted Average Yield 2.94 * 

Weighted Average Benchmark 6.80 t 



• 



Attachment B Part 2 to Boswell Declaration 

-18- 0671 



to§J^"!5^"°''S^^"^f^ Document 26-8 Filed 08/11/2007 Page 10 of 44 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30. 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 



Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Combined for this Analysis. 



Fiscal 


Average Daily 


Total Earned Interest 


Calculated 








Disposition 


Year 


Invested Balance 


Posted 


on Investaents 


Yield 


Benchaark 


Variance 


Calculated Variance 


(refer to B-1) 


1984 


$997,911.19 




$16,908.18 


1.69 X 


10.54 X 


(8.85)X 


($88,315.14) 


8 


1985 


$4,153,772.70 




$499,685.02 


12.03 X 


10.17 I 


1.86 X 


$77,260.17 


A 


1966 


$1,450.24 




$124.64 


8.59 X 


8.36 X 


.23 X 


$3.34 


A 


1990 


$659.26 




$51.60 


7.83 X 


8.78 X 


(.95)X 


($6.26) 


A 


1991 


$2,296.37 




$174.27 


7.59 X 


7.68 X 


(.09)X 


($:.&/) 


A 


1992 


$2,431.50 




$75.58 


3.11 X 


6.80 : 


(3.69)X 


($89.72) 


A 



Suninary for this Account 



Average Annual Invested Balance $859,753.54 

Average Annual Interest Posted $86,169.88 

Weighted Average Yield io.02 X 

Weighted Average Benchmark 10.24 X 



Attachment B Part 2 to Boswell Declaration 

.19- 0672 



.Case*WB^6v-01897-JR Document 26-8 Filed 08/11/2007 Page 11 of 44 

■orXfucuasion Purpoaes Only ^ 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30. 1992 

SUMMARY OF INVESTHENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 



Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Combined for this Analysis. 

Fiscal Average Daily Total Earned Interest Calculated 



Dupositlon 



Year Invested Balance Posted on Invest.ents Yield Benctaark Variance Calculated Variance (refer to B-1) 



"^ t85. 076.30 $9,888.09 11.62 t 10.54 X 1.08 X J918 82 A 

^^ 19.379.82 $955.36 10.19 X 10.17 » .02 X $1.88 A 



Suninary for this Account 



Average Annual Invested Balance $47,228.06 

Average Annual Interest Posted $5,421.72 

Weighted Average Yield 11.4B X 

Weighted Average Benchmark lO.SO X 



Attachment B Part 2 to Boswell Declaration 

-20- 



0673 



Case f;9«Efe^-01897-JR Document 26-8 Filed 08/11/2007 Page12of44 

For Diccuuion Purpose* Onl^ 



U.S. DEPARTT€WT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEHBER 30. 1992 

SUMMARY OF INVESTHENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 



Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Combined for this Analysis. 



Fiscal 


Average Daily 


Total 


Earned Interest 


Calculated 








Disposition 


Year 


Invested Balance 


Posted 


1 on 


Investments 


Yield 


Benchaark 


Variance 


Calculated Variance 


(refer to 81) 


1985 


J6.703.59 






$277.76 


4.14 X 


10.17 X 


(6.03)X 


($404.23) 


A 


1986 


$40,938.06 






$2,799.49 


6.84 X 


8.36 X 


{l.S2)X 


(■$622.26) 


A 


1987 


S29.82e.96 






$2,088.73 


7.00 X 


7.42 X 


(.42)X 


($125.28) 


A 


1988 


$37,060.49 






$2,303.07 


6.21 r 


7.60 i 


(1.39)X 


($515.14) 


A 


1989 


$40,569.42 






$4,846.43 


11.95 X 


8.90 X 


3.05 X 


$1,237.37 


A 


1990 


$38,185.77 






U. 165.68 


10.91 X 


8.78 X 


2.13 X 


$813.36 


A 


1991 


$39,872.65 






$2,697.65 


6.77 X 


7.68 X 


(-91)X 


($362.84) 


A 


1992 


$57,022.93 






$1,753.69 


3.08 X 


6.80 X 


(3.72)X 


($2,121.25) 


B 



Sunmary for this Account 



Average Annual Invested Balance $36,272.73 

Average Annual Interest Posted $2,616.56 

Weighted Average Yield 7. 21 x 

Weighted Average Benchmark 7.94 X 



• 



Attachment B Part 2 to Boswell Declaration 

-21- 0674 



Ca&e 1^-^-0 1897-JR Document 26-8 Filed 08/11/2007 Page 13 of 44 

For Ducuaaion T^uposea Onl> ^ 



U.S. DEPAR"mENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30. 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 



Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Combined for this Analysis. 



Fiscal 


Average Daily 


Total 


Earned Interest 


Calculated 








Disposition 


Year 


Invested Balance 


Postec 

f 


1 on 


Investaents 


Yield 


Benchaark 


Variance 


Calculated Variance 


(refer to B-1) 


1966 


16.935.00 






$490.25 


7.07 X 


8.36 X 


(1.29)X 


($89.46) 


A 


1987 


tl2.894.32 






$372.24 


2.89 X 


7.42 X 


(4.53)X 


($584.11) 


A 


1988 


$17,137.67 






$1,068.57 


6.24 X 


7.60 X 


(1.36)X 


($233.07) 


A 


1989 


$18,447.75 






$2,237.19 


, 12.13 X 


B.9Q X 


3.23 X 


$595.86 


A 


1990 


$15,550.00 






WJTSi.Tl 


11.10 ^ 


8.78 : 


2.32 X 


$360.76 


A 


1991 


$15,702.36 






$1,045.70 


6.66 X 


7.68 : 


C1.02)X 


($160.16) 


A 


1992 


$23,563.36 






$721.56 


3.06 X 


6.80 X 


(3.74)X 


($881.27) 


A 



Sumnary for this Account 



Average Annual Invested Balance $15,747.21 

Average Annual Interest Posted $1,094.46 

Weighted Average Yield 6.95 x 

Weighted Average Benchmark 7.85 t 



Attachment B Part 2 to Boswell Declaration 

-22- 0675 



Case 1?»®t?RP-01897-JR Document 26-8 Filed 08/11/2007 Page 14 of 44 

For DiacuMion Purpoaes On)> - 



U.S. DEPARTMENT OF WE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30. 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 



Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Combined for this Analysis. 



Fiscal 


Average Dally 


Total 


Earned Interest 


Calculated 








Disposition 


Year 


Invested Balance 


Posted 


on Inwestaents 


Yield 


Benchaark 


Variance 


Calculated Variance 


(refer to B-1) 


1965 


S71.946.24 




t.OO 


.00 X 


10.17 * 


(10.17)X 


(J7.316.93) 


B 


1986 


1575.062.97 




JSO.383.82 


8.76 X 


8.36 X 


.40 X 


12.300.25 


A 


1987 


J636. 524.63 




J41.684.34 


6.55 X 


7.42 X 


(.87) J 


(tS.S37.76) 


A 


1988 


J681.149.05 




J26.497.03 


3.89 X 


7.60 X 


(3.71)* 


(125.270.63) 


B 


1989 


J731.497.37 




J59.095.01 


8.08 X 


8.90 X 


(.82)t 


f«5. 998.28) 


A 


1990 


J 772. 990. 50 




J116.593.65 


15.08 X 


8.78 X 


6.30 X 


J48.698.40 


B 


1991 


J864.381.92 




J63.627.17 


7.36 X 


7.68 X 


(.32)t 


(J2.766.02) 


A 


1992 


J925.6S3.90 




J33.055.78 


3.57 : 


6.80 X 


(3.23)1 


(J29.898.62) 


B 



Suninary for this Account 



Average Annual Invested Balance $657,400.82 

Average Annual Interest Posted $4€.867.10 

Weighted Average Yield 7.43 l 

Weighted Average Benchmark 7.92 x 



Attachment B Part 2 to Boswell Declaration 

.23. 0676 



'«i^Sac£§§S"°''S§I"^f^ Document 26-8 Filed 08/11/2007 Page 15 of 44 



U.S. DEPARTTIENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1, 1972 TWXJGH SEPTEMBER 30. 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 



Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Combined for this Analysis. 



Fiscal 
Year 


Average Daily 
Invested Balance 


Total 
Posted 


Earned Interest 
1 on Investments 


Calculated 
Yield 


Benchiark 


Variance 


Calculated Variance 


Disposition 
(refer to 8-1) 


1983 
1984 
1990 
1991 
1992 


$1,249,685.77 

$1,670.21 

$817.14 

$2,884.49 

$3,096.75 




$126,040.39 
$189.63 

$62.03 
$218.27 

$95.95 


10.09 X 

11.35 X 

7.59 X 

7.57 X 

3.10 t 


10.88 X 

10.54 X 
8.78 X 
7.68 X 
6.80 X 


(.79)X 

.81 X 

(1.19)X 

(.IDX 
(3.70)X 


($9,872.52) 

$13.53 

($9.72) 

($3.17) 

($114.58) 


A 
A 
A 

A 
A 



Sumnary for this Account 



Average Annual Invested Balance $251,630.87 

Average Annual Interest Posted $25,321.25 

Weighted Average Yield 10.06 * 

Weighted Average Benchmark 10.86 X 



Attachment B Part 2 to Boswell Declaration 

.24. 0677 



Q^A§i«!Jiffi-0i§9(J:^R Document 26-8 Filed 08/11/2007 Page 16 of 44 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30. 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 

Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Contined for this Analysis. 



Fiscal 
Year 


Average Daily 
Invested Balance 


Total Earned Interest 
Posted on InvestMnts 


Calculated 
rield 


Benchnark 


Variance 


Calculated Variance 


Disposition 
(refer to B-1) 


1983 
19B4 


S33.705.15 
$908.30 


12.827.89 
$176.75 


8.39 X 
19.46 : 


10.88 X 
10.54 X 


(z.mx 

8.92 X 


($839.26) 
$81.02 


A 
A 



Sumnary for this Account 



Average Annual Invested Balance tl7.306.73 

Average Annual Interest Posted $1,502.32 

Weighted Average Yield 8 68 J 

Weighted Average Benchmark io.87 X 



Attachment B Part 2 to Boswell Declaration 



.25- 0678 



^^gj;*^-^-018j^|-JR Document 26-8 Filed 08/11/2007 Page 17 of 44 



U.S. 0EPAR7WENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30. 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 



Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Combined for this Analysis. 



Fiscal 


Average Daily 


Total 


Earned Interest 


Calculated 








Disposition 


Year 


Invested Balance 


Posted 


1 on 


Investaents 


Yield 


Benchaark 


Variance 


Calculated Variance 


(refer to B-1) 


1983 


J17.647.53 






Jl.558.54 


6.83 X 


10.88 X 


(2.05)t 


($361.77) 


A 


1984 


$10,383.68 






$1,118.84 


10.77 : 


10.54 X 


.23 X 


$23.88 


A 


1985 


J25.423.03 






J2.382.46 


9.37 X 


10.17 X 


(.80)t 


($203.38) 


A 


1986 


125.445. 01 






J2.5a3.87 


9.84 J 


8.36 X 


1.48 X 


J376.59 


A 


1987 


J15.126.S1 






J732.63 


4.84 X 


7.42 : 


(2.5B)X 


($390.26) 


A 


1988 


$15,117.42 






J939.46 


6.21 X 


7.60 X 


<1.39)X 


($210.13) 


A 


1989 


J16.249.16 






Jl.985.43 


12.22 t 


8.90 X 


3.32 X 


$539.47 


A 


1990 


J13.967.58 






Jl.542.10 


11.04 X 


8.78 X 


2.26 X 


$315.67 


A 


1991 


J13.689.00 






J926.2B 


6.77 X 


7.68 X 


{.91)X 


($124.57) 


A 


1992 


J20.553.62 






$638.90 


3.11 r 


6.80 X 


C3.69)r 


($758.43) 


A 



Sunmary for this Account 



Average Annual Invested Balance $17,360.25 

Average Annual Interest Posted $1,432.85 

Weighted Average Yield 8.25 J 

Weighted Average Benchmark 8.71 » 



Attachment B Part 2 to Boswell Declaration 

-26- 0679 



Case 1sa©w:E-01897-JR 

For Disctnaion Purposes Onl; 



Document 26-8 Filed 08/1 1 /2007 Page 1 8 of 44 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 



Tnbe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Combined for this Analysis. 



Fiscal 


Average Daily 


Total Earned Irrterest 


Calculated 








Disposition 
(refer to 8-1) 


Year 


Invested Balance 


Posted on Investments 


Yield 


BenchMPk 


Variance 


Calculated Variance 


1978 


1307.883.73 


$15,219.50 


4.94 X 


7.67 X 


(2.73)X 


($8,405.23) 


B 


1979 


$320,948.29 


$39,063.40 


12.17 X 


10.41 X 


1.76 X 


$5,648.69 


A 


1980 


J237.390.97 


$32,552.30 


13. n X 


12.04 X 


1.67 X 


$3,964.43 


A 


1981 


$124,223.35 


$13,999.55 


11.27 * 


14.74 X 


(3.47)X 


($4,310.55) 


e 


1982 


$142,007.74 


$26,943.87 


18.97 I 


14.48 X 


4.49 X 


$6,376.15 


A 


1983 


$164,223.96 


$16,379.83 


9.97 X 


10.88 X 


(.91)X 


($1,494.44) 


A 


1984 


$180,195.82 


$22,483.58 


12.48 X 


10.54 X 


1.94 X 


$3,495.80 


A 


1985 


$201,977.95 


$19,598.38 


9.70 r 


10.17 X 


(.47)X 


($949.30} 


A 


1986 


$220,229.33 


$20,324.05 


9.23 X 


8.36 X 


.87 X 


$1,916.00 


A 


1987 


$209,383.51 


$8,399.71 


4.01 X 


7.42 X 


(3.41)X 


($7,139.98) 


B 


1988 


$255,218.80 


$15,937.62 


6.24 X 


7.60 X 


(1.36)X 


($3,470.98) 


A 


1989 


$273,932.86 


$32,455.94 


11.85 X 


8.90 X 


2.95 X 


$8,081.02 


A 


1990 


$295,143.92 


$30,497.08 


10.33 X 


8.78 X 


1.55 X 


$4,574,73 


A 


1991 


$323,089.16 


$23,327.09 


7.22 t 


7.68 X 


(.46)X 


($1,486.21) 


A 


1992 


$348,197.76 


$10,332.11 


2.97 X 


6.80 X 


(3.B3)X 


($13,335.97) 


B 



Sumnary for this Account 



Average Annual Invested Balance 
Average Annual Interest Posted 
Weighted Average Yield 
Weighted Average Benchmark 



$240,269.81 

$21,834.27 

9.09 X 

9.27 X 



Attachment B Part 2 to Boswell Declaration 



-27- 



0680 



Cases|/i8i@tev-01897-JR Document 26-8 Filed 08/11/2007 Page19of44 

For Discusaion Purposes Only 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30. 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 

Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Combined for this Analysis. 

Fiscal Average Daily Total Earned Interest Calculated Disposition 

Year Invested Balance Posted on Investments Yield Benchiark Variance Calculated Variance (refer to B-1) 



1978 $480.02 $.22 .05 i 7.67 X (7.62)X ($36.58) A 



Sumnary for this Account 



Average Annual Invested Balance $460.02 

Average Annual Interest Posted J.22 

Weighted Average Yield .05 r 

Weighted Average Benchmark 7.67 * 



Attachment B Part 2 to Boswell Declaration 



-28- 0681 



Case -pjO^^es^-OISgy-JR 

Far Diacusaion Puqwaes Oni; 



Document 26-8 Filed 08/1 1 /2007 Page 20 of 44 



U.S. DEPARTMENT OF TVE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 



Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Combined for this Analysis. 



Fiscal 


Average Daily 


Total Earned Interest 


Calculated 








Disposition 


Year 


Invested Balance 


Posted on Investaents 


Yield 


Benchaark 


Variance 


Calculated Variance 


(refer to B-1) 


X978 


1163.610.69 


$6,610.64 


5.39 X 


7.67 X 


(2.28)X 


($3,730.32) 


81 


1979 


$16,762.14 


($6,752.48) 


(40.28)X 


10.41 X 


(50.69)X 


($8,496.73) 


BI 


19S0 


$6,546.96 


$.00 


.00 X 


12.04 X 


(12.M)X 


($788.25) 


A 


1981 


$6,582.56 


$325.18 


4.94 * 


14.74 X 


(9.80)X 


($645.09) 


A 


1982 


$7,372.96 


$1,240.26 


16.82 X 


14.48 X 


2.34 r 


$172.53 


A 


1983 


$8,474.90 


$831.74 


9.81 X 


10.88 X 


(1.07)X 


($90.68) 


A 


1984 


$7,922.28 


$996.20 


12.57 X 


10.54 X 


2.03 X 


$160.82 


A 


1985 


$5,808.13 


$569.52 


9.81 X 


10.17 X 


(.36)X 


($20.91) 


A 


1986 


$6,333.55 


$577.24 


9.11 X 


8.36 X 


.75 X 


$47.50 


A 


1987 


$12,183.63 


$237.70 


1.95 : 


7.42 X 


{S.47)X 


($666.44) 


A 


1988 


120.959.57 


$1,328.34 


6.34 X 


7.60 X 


(1.26)X 


($264.09) 


A 


1989 


$22,471.52 


$2,646.38 


n.78 X 


8.90 X 


2.68 X 


$647.18 


A 


1990 


$18,303.33 


$2,039.01 


11.14 X 


8.78 X 


2.36 X 


$431.96 


A 


1991 


$18,999.00 


$1,283.74 


6.76 X 


7.68 X 


( .92)X 


($174.79) 


A 


1992 


$28,521.11 


$874.80 


3.07 X 


6.80 X 


(3.73)X 


($1,063.84) 


B 



Suiiinary for this Account 



Average Annual Invested Balance 
Average Annual Interest Posted 
Weighted Average Yield 
Weighted Average Benchmark 



$23,390.16 

$1,000.55 

4.28 X 

8.41 t 



Attachment B Part 2 to Boswell Declaration 



-29- 



0682 



Casesi^©-I;v-01 897-JR 

For Diacuaaion Putpoaes Only 



Document 26-8 Filed 08/11/2007 Page 21 of 44 



U.S. DEPARTHENT OF THE INTERIOR 
BUREAU OF INDIAN AFFAIRS 
TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 

SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30. 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS RESULTS FOR 
THE THIBE 



Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Coofcined for this Analysis. 



Fiscal 


Average Dally 


Total Earned Interest 


Calculated 








Disposition 


Year 


Invested Balance 


Posted on InvestBents 


Yield 


Benchaark 


Variance 


Calculated Variance 


(refer to 8-1) 


1978 


$262.160. 46 


$5,691.09 


2.17 X 


7.67 X 


(5.50)» 


($14,418.83) 


81 


1979 


S218. 798.45 


($4,368.63) 


(2.00W 


10.41 X 


(12.41)X 


($27,152.89) 


BI 


1980 


S218. 798.45 


$.00 


.00 X 


12.04 X 


(12.04): 


($26,343.33) 


81 


19BI 


$206,519.36 


$.00 


.00 X 


14.74 X 


(14.74)t 


($30,440.95) 


BI 


1982 


$199,668.13 


$46,898 32 


23.49 X 


14.48 X 


9.01 X 


$17,990.10 


B 


1983 


$252,926.77 


$22,962.38 


9.08 X 


10.88 X 


(1.80)X 


(M. 552. 68) 


A 


1984 


$303,626.81 


$37,316.88 


12.29 X 


10.54 X 


1.75 X 


$5,313.47 


A 


1985 


$339,778.98 


$32,685.33 


9.62 X 


10.17 X 


(.SS)» 


($1,868.78) 


A 


1986 


$370,204.67 


$33,569.10 


9.07 » 


8.36 X 


.71 X 


$2,628.45 


A 


1987 


$351,656.53 


$14,305.91 


4.07 X 


7.42 X 


(3.35U 


($11,780.49) 


6 


1988 


M28.770.57 


$26,761.05 


6.24 X 


7.60 X 


(1.36U 


($5,831.28) 


A 


1989 


$460,155.96 


$54,481.87 


11.84 X 


8.90 } 


2.94 X 


$13,528.59 


A 


1990 


$461,998.69 


$46,906.64 


10.15 X 


8.78 * 


1.37 * 


$6,329.38 


A 


1991 


$538,677.11 


$40,412.48 


7.50 X 


7.68 X 


(.18)* 


($969.62) 


A 


1992 


$485,801.72 


$17,656.51 


3.63 X 


6.80 X 


(3.17)X 


($15,399.91) 


B 



Summary for this Account 



Average Annual Invested Balance 
Average Annual Interest Posted 
Weighted Average Yield 
Weighted Average Benchmark 



J339,969.51 

S25.0I8.60 

7.36 X 

9.18 X 



Attachment B Part 2 to Boswell Declaration 

-30- 



0683 



018^-JR Document 26-8 Filed 08/11/2007 Page 22 of 44 



urpoaes 



U.S. DEPARTWENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 

Tribe SAMPLE {x99999) 

Principal and Related Interest Account Have Been Combined for this Analysis. 



Fiscal 


Average Daily 


Year 


Invested Balance 


1978 


119.750.19 


1979 


$18,798.45 


1980 


118.798. 45 


1981 


$18,798.45 


1982 


$20,854.82 


1983 


$24,031.56 


1984 


$26,387.12 


1985 


$29,524.94 


1966 


$32,188.83 


1987 


$30,573.24 


1988 


$37,266.24 


1989 


$40,000.10 


1990 


$42,820.09 


1991 


$47,222.96 


1992 


$50,929.95 



Total Earned Interest Calculated Disposition 

Posted on lnvest>ents Yield Bench.ark Variance Calculated Variance (refer to B-l) 



$424.90 

($230.22) 

$.00 

$.00 

$4,175.97 

$2,101.17 

$3,249.13 

$2,846.76 

$2,921.55 

$1,257.99 

$2,309.29 

$4,756.17 

$4,471.49 

$3,408.13 

$1,567.23 



2.15 X 

a.2Z)X 

.00 X 

.00 X 

20.02 X 
8.74 X 

12.31 * 
9.64 X 
9.08 X 
4.11 X 
6.20 X 

11.89 X 

10.44 X 
7.22 t 
3.08 X 



7.67 X 

10.41 X 

12.04 X 

14.74 X 

14.48 X 

10.88 X 

10.54 X 

10.17 X 

8.36 X 

7.42 X 

7.60 X 

8.90 X 

8.78 X 

7.68 X 

6.80 X 



(5.52)X 

(11.63)t 

(12.04)2 

(14.74)* 

5.W i 

(2.14)t 

1.77 X 

(.53)X 

.72 X 

(3.31)* 

(1.40)X 

2.^9 X 

1.66 * 

(.46)* 

(3.72)* 



($1,090 

($2,186 

($2,263 

($2,770 

$1,155 

($514 

$467 

($156 

$231 

($1,011 

($521 

$1,196 

$710 

($217 

($1,894 



.21) 

.26) 

.33) 

.89) 

.36 

.28) 

.05 

.48) 

.76 

.97) 

.73) 

.00 

81 

23) 

59) 



81 

81 

61 

BI 

B 

A 

A 

A 

A 

8 

A 

A 

A 

A 

B 



Suninary for this Account 



Average Annual Invested Balance 
Average Annual Interest Posted 
Weighted Average Yield 
Weighted Average Benchmark 



$30,529.69 


$2,217.30 


7.26 X 


9.20 : 



Attachment B Part 2 to Boswell Declaration 



-31- 



0684 



P^j)gj^^.^^v^ov-01§^7-JR Document 26-8 Filed 08/11/2007 Page 23 of 44 



U.S. DEPARTMENT OF THE IFfTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAHPLE 
JULY 1, 1972 THROUGH SEPTEMBER 30. 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 



Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Coabined for this Analysis. 

Fisc«l Average Dally Total Earned Interest Calculated 



Disposition 



Year Invested Balance Posted on Investwnts Yield Bench-ark Variance Calculated Variance (refer to Bl) 



"^8 *203.60 M.36 2.15 X 7.67* (5.52)X (,li 24) A 

"" "93-79 (JZ.37) (l.Z2)X 10.41 X (11.63)1 (J22 54) A 

"^° *138.04 ,.00 .OCX 12.04 X (12.04)X ($16 62) A 



Sumnary for this Account 



Average Annual Invested Balance $178.48 

Average Annual Interest Posted $.67 

Weighted Average Yield .38 j 

Weighted Average Benchmarlc 9.79 X 



Attachment B Part 2 to Boswell Declaration 

-32- 0685 



Gaae1^^6W01897-JR Document 26-8 Filed 08/11/2007 Page 24 of 44 



U.S.. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TTJUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 THROUGH SEPTEMBER 30. 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 



Tribe SAMPLE {x99999) 

Principal and Related Interest Account Have Been Confined for this Analysis. 



Fiscal 
Year 


Average Daily 
Invested Balance 


Total Earned Interest 
Posted on Inwestaents 


Calculated 
Yield 


Benchnark 


Variance 


Calculated Variance 


Disposition 
(refer to B-1) 


1978 


$329,607.51 


$34,519.86 


10.47 X 


7.67 X 


2.80 X 


$9,229.01 


A 


1979 


J320.375.99 


$127,215.51 


39.71 t 


10.41 X 


29.30 X 


$93,870.17 


81 


1980 


J313. 193.80 


$69,196.85 


22.09 i 


12.04 X 


10.05 X 


$31,475.98 


81 


1981 


*410.443.46 


$104,573.21 


25.48 X 


14.74 X 


10.74 X 


$44,081.63 


BI 


1982 


1550. 499. 84 


$110,160.59 


20.01 X 


14.48 X 


-.53 X 


$30,442.64 


B 


1983 


1616.499.48 


$54,269.70 


8.80 X 


10.88 X 


(2.08)X 


($12,823.19) 


B 


1984 


1651.298.15 


$79,424.51 


IZ.19 X 


10.54 X 


1.65 X 


$10,746.42 


A 


1985 


$727,742.58 


$69,968.00 


9.61 X 


10.17 X 


(.56)X 


($4,075.36) 


A 


1986 


$793,098.38 


$71,613.49 


9.03 X 


8.36 X 


.67 X 


$5,313.76 


A 


1987 


$757,791.73 


$33,249.59 


4.39 I 


7.42 X 


(3.03)X 


($22,961.09) 


B 


1988 


$917,607.28 


$54,732.95 


5.96 X 


7.60 X 


{1.64)X 


($15,048.76) 


A 


1989 


$984,375.16 


$116,803.36 


11.87 X 


8.90 X 


2.97 X 


$29,235.94 


A 


1990 


$1,011,544.38 


$100,150.62 


9.90 X 


8.78 X 


1.12 X 


$11,329.30 


A 


1991 


$1,175,062.58 


$87,614.83 


7.46 X 


7.68 X 


(.22)X 


($2,585.14) 


A 


1992 


$1,074,696.27 


$55,572.41 


5.17 X 


6.80 X 


(1.63)X 


($17,517.55) 


A 



Summary for this Account 



Average Annual Invested Balance 
Average Annual Interest Posted 
Weighted Average Yield 
Weighted Average Benchmark 



$708,922.44 

J77.937.70 

10.99 X 

9.20 * 



Attachment B Part 2 to Boswell Declaration 



-33- 



0686 



iSi§e^^l^&8iJ-JFI Document 26-8 Filed 08/11/2007 Page 25 of 44 



U.S. DEPARTMENT OF "mE INTERIOR 
BUREAU OF INDIAN AFFAIRS 
TRIBAL TRUST FUNDS RECONCILIATION PROJECT- 
AGREED -UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1, 1972 ■mROUGH SEPTEMBER 30. 1992 

SUMMARY OF INVESTMENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 



Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Combined for this Analysis. 



Fiscal 


Average Daily 


Total Earned Interest 


Calculated 








Disposition 


Year 


Invested Balance 


Posted on Investments 


Yield 


8enctaark 


Variance 


Calculated Variance 


(refer to B-1) 


1978 


1107. 063. 42 


$2,303.39 


2.15 t 


7.67 X 


(5.52)X 


($5,909.90) 


81 


1979 


nOl.902.89 


($1,247.98) 


(1.22)X 


10.41 X 


(11.63)X 


($11,851.31) 


BI 


1980 


nOl.902.89 


$.00 


.00 X 


12.04 X 


(12.04)X 


($12,269.11) 


BI 


1961 


$101,902.89 


$.00 


.00 X 


14.74 X 


C14.74)X 


($15,020.49) 


BI 


1982 


ni2.763.21 


$22,146.18 


13.64 X 


14.48 X 


5.16 X 


$5,818.58 


B 


1983 


tl29.866.32 


$11,538.95 


8.89 X 


10.88 X 


(1.99)X 


($2,584.34) 


A 


1984 


$110,133.77 


$14,063.73 


12.77 X 


10.54 X 


2.23 X 


$2,455.98 


A 


1985 


$116,850.67 


$11,404.79 


9.76 X 


10.17 X 


(.41)X 


($479.09) 


A 


1986 


$127,543.18 


$11,458.41 


8.98 X 


8.36 X 


.62 X 


$790.77 


A 


1987 


$121,114.56 


$5,079.28 


4.19 X 


7.42 X 


(3.23)X 


($3,912.00) 


B 


1988 


1147.809.61 


$9,312.77 


6.30 X 


7.60 X 


(1.30)X 


($1,921.52) 


A 


1989 


$158,466.89 


$19,177.35 


12.10 X 


8.90 X 


3.20 X 


$5,070.94 


A 


1990 


$176,698.93 


$18,198.65 


10.30 X 


8,78 X 


1.52 X 


$2,685.82 


A 


1991 


$114,691.84 


$8,418.26 


7.34 X 


7.68 X 


(.34)X 


($389.95) 


A 


1992 


$108,423.20 


$3,297.71 


3.04 X 


6.80 X 


(3.76)X 


($4,076.71) 


B 



SuRinary for this Account 



Average Annual Invested Balance 
Average Annual Interest Posted 
Weighted Average Yield 
Weighted Average Benchmark 



$122,475.62 

$9,010.10 

7.36 X 

9.62 X 



Attachment B Part 2 to Boswell Declaration 



-34- 



0687 



Case^*©^^-01897-JR Document 26-8 Filed 08/11/2007 Page 26 of 44 

For Discuasion Purpooes Oni, 



U.S. DEPARTWENT OF THE IffTERIOR 
BUREAU OF INDIAN AFFAIRS 
TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 
FOR 
SAMPLE 
JULY 1. 1972 TMXJGH SEPTEMBER 30. 1992 

SUMMARY OF INVESTI^ENT YIELD ANALYSIS RESULTS FOR 
THE TRIBE 

Tribe SAMPLE (x99999) 

Principal and Related Interest Account Have Been Combined for this Analysis. 

Fiscal Average Daily Total Earned Interest Calculated Disposition 

rear Invested Balance Poste<* on Investwfits Yield Benctwark Variance Calculated Variance (refer to Bl) 



"^8 S214.837.70 M. 002. 96 1.86 X 7.67 X (5.81)J ($12,482.07) BI 

"79 $148,470.38 ($3,073.36) (2.07)r 10.41 X (12.48)X ($18,529.10) BI 



Summary for this Account 



Average Annual Invested Balance $181,654.04 

Average Annual Interest Posted' $464.80 

Weighted Average Yield .26 X 

Weighted Average Benchmark 8.79 X 



Attachment B Part 2 to Boswell Declaration 

0688 
-35- 



Cases1^e6feev-01897-JR Document 26-8 Filed 08/11/2007 Page 27 of 44 

For Discussion Purposes Onl^ 

U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 
SUMMARY OF TREASURY INTEREST RECALCULATION PROCEDURES 

PROCEDURES 

The following procedures were applied to Fiscal Years 1978 through 199Z General ledger 

income/ cost codes needed to determine whether a transaction is interest related were not available for 

years prior to Fiscal Year 1978 and, Aerefore, interest receipts could not be identified for comparison. 

We recalculated Treasury Ovemighter interest earnings and statutory Treasury interest earnings 
received by the Tribe on the daily cash balance in each of the Tribe's Trust accovmts tising the 
applicable Treasury interest rates and daily balances provided by the Bureau. 

SUPPLEMENTAL INFORMATION 

Arthur Andersen LLP recalculated interest earnings on uninvested cash balances for comparison to 
actual interest postings. The recalculation was based on Bureau historical treatment of cash balance 
interest allocations, which was a simple interest cakuiation at statutory rates through December 31, 
1984. As of January 1, 1985, interest was compounded daily based on applicable Treasury posted 
rates. Assumptions derived from the Bureau historical calculations were used by Arthur Andersen 
LLP to develop a computer program to perform the recalculations. 

The recalculations represent a detailed estimate of what should have been posted to an account 
applying the same theory the Bureau used historically. However, certain historical events and data 
quality limitations prevent an exact recalculation and comparison, such as: 

• Bureau delays in the posting of actual interest created timing differences in the comparisons (i.e., 
cash versus accrual calculation differences). In some cases, the delays were significant and 
overlapped several calculation periods. 

• Transaction dates were not available for all transactions and were derived based on certain 
assumptions in order to prepare a mathematically valid calculation. 

• Begirming in January 1985, the Bureau's historical internal allocation method did not calculate 
interest retroactively to the effective date of the transaction when the transaction was not posted 
on a timely basis (Le., the transaction was posted after Treasury interest had been calculated for 
the period to which the transaction pertained). The date of data entry of a transaction is not 
available in the data provided by the Bureau to Artftur Andersen LLP. The recalculations are 
retroactive to the effective date of the transaction. 

Following is a summary of the basic assimiptions included in the recalculations: 

• Cash balances used as a basis for recalculations were derived by taking the current cash balance at 
the beginning of the fiscal year and adjusting for posted transactions affecting cash during the 
year. 

Attachment B Part 2 to Boswell Declaration 

-36- 0689 



qa^J^g^-018^-JR Document 26-8 Filed 08/11/2007 Page 28 of 44 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 
SUMMARY OF TREASURY INTF REST RECALCULATION PRnrPnTTPFQ 

Interest was recalculated on the average cash balance for all accounts, including negative cash 
balances tiiat resulted in negative interest recalculations. 

The foUowing priority was used in determining the dates used in the Treasury Interest 
Recalculation where fte original effective date was not available or was determined to be 
inaccurate through the reconciliation process. 

o Basic Reconciliation proposed date changes to the general ledger based on financial source 
documents, concurred with by the Bureau. 

o Effective date obtained from investment/ MoneyMax reports for investment transactions 
greater than or equal to $50,000 which lack effective dates in the general ledger, and certain 
tiansacfaons less than $50,000 represented by the same invesbnent document reference 
researched. 

o Effective date obtained from the Bureau manual interest calculation ledgers for unreconciled 
tiansactions greater than or equal to $50,000 which lack effective dates in tiie general ledger. 

o Effective date obtained from source documents provided by tfie Bureau for unreconciled 
transactions greater than or equal to $50,000 which lack effective dates in the general ledger 
and could not be resolved through research of invesbnent/ MoneyMax reporte. 

o Approximate ti-ansaction dates were derived from the document reference. The Bureau has 
historically utilized the transaction month or Julian date in its coding convention for document 
references. Juhan dates were converted, or when available, the month was identified from the 
document reference, and the tiansaction was assigned an effective date of tiie 15th of that 
montn. 

o Approximate tiansaction dates were derived based on tiie month a tiansaction first appeared 
m ttie general ledger. Based on research of monthly hard copy reports, a tiansaction was 
assigned the 15th day of the month it first appeared. 

o Intoest calcula^ for Fiscal Year 1992 includes a calculation of interest for transactions posted 
m Fiscal Year 1993 with effective dates on or prior to September 30, 1992. 

Interest for the appropriate time periods, was recalculated as follows: 
Tulv 1978 - December 1984 

o Stahitory rates of four (4) percent or five (5) percent were utilized for simple interest calculated 
every six (6) montiis on average cash balances. Four (4) or five (5) percent appUed to principal 
account balances only (i.e., no interest applied to appropriations 7500 through 7999 or 9500 
through 9999, which are interest accounts) as provided by US. Code Title 25 § 161a. 

Attachment B Part 2 to Boswell Declaration 

-37- 0690 



fi.?§siM#-0''SSJ"^f^ Document 26-8 Filed 08/11/2007 Page 29 of 44 



US. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONOUATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 
SUMMARY OF TREASURY I NTEREST REC ALCULATinN PROCEDURFfi 

l anuarv 1985 - September 1997 

O Daily posted Treastuy rates (provided by the Bureau) were compounded daily based on each 
days average cash baknce for aU accounts. Principal and interest accounts were combined for 
comparison (i.e., all 7XXX and 9XXX accounts). 

. The calo^ted interest amounts for each account and each year were compared to the total actual 
ovemighter mterest postings identified as those transactions with a document description 
contammg a "BB" wfth a "Z" or "AW" and an element component (revenue code) of 9701, with 
Ae one f^ception of document rr05Z0002 posted in Fiscal Year 1982, which was also determined 

^^Tt^ Ti^rV^J^^^"^' ^*^^*' ^^ "^'^ ^^'' ^^ ^^^^' component of 9701 
posted to Alaska Native Fund determined not to be ovemighter. 

Below are specific laws related to investments and rates of interest of Tribal funds held in Trust 

UNITED STATES CODE TITLE 25 INDL\NS 

SUBCHAPTER m - DEPOSIT, CARE, AND INVESTMENT ON INDIAN MONEYS 

25 § 161a. Tribal ftmds in trust in Treasury Department rate of interest 

AU funds with account balances exceeding $500 held in Trust by the United States and carried in 

fn'SS *'TT °" ** ^^ °^ ** "^""^"^ Department to the credit of Indian Tribes, upon which 
mterest ^ not otherwise authorized by law, shafl bear simple interest at the rate of 4 per cen^ per 

(Feb. 1^ 1929, C. 178 § 1, 45 Stat 1164; June 13, 1930, c. 483, 46 Stat 584.) 

25 § 161a. Tribal funds in trust in Treasury Department; investment by Secretary of the Treasury 

maturities; interest ^' 

T?*!!? c^-i'^^'* ^ ^™!I*^ *^ ^™*^ ^*^*^ ""^ "^^ ^ P™<^P^ accounts on the books of the 
Uiuted States Treasmy to the credit of Indian tribes shaU be invested by the Secretary of the Treasury 
^^ '«!"«* of *e Secretary of the Interior, in pubUc debt securities with maturities suitable to the 
7^ *r,!!^ '^^' ** ^^*^™^«^ ^ *e Secretary of the Interior, and bearing interest at rates 
detemmed by the Secretary of the Treasury, taking into consideration current market yields on 
outstandmg marketable obligations of the United States of comparable maturities. 

(As amended Oct 4, 1984, Pub. L. 98^51, § 1, 98 Stat 1729.) 



Attachment B Part 2 to Boswell Declaration 

-38- 0691 



CassXlNft6ECv-01897-JR Document 26-8 Filed 08/11/2007 Page 30 of 44 

For DiacuMion Purpoaes Only 



US. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR _ 
SAMi'Lt " 
JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF TREASURY INTEREST RECALCULATION PROCEDURES 

FINDINGS 

See Attachment B-2a for "Summaiy of Treasury Interest Recalculation Results for the Tribe". 
Adjustments 

Any resulting adjustments affecting the Tribe are reported in ttie accompanying Tribal Account 
Statements. 



AttaGhment B Part 2 to Boswell Declaration 

0692 
-39- 



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Attachment B Part 2 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-8 Filed 08/11/2007 Page 32 of 44 

SAMPLE 
For DiacuMion Puipooes Only 

U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 
SUMMARY OF PRO FORMA PROCEDURES 

PROCEDURES 

The following procedures were applied to Fiscal Years 1978 through 199Z General ledger 

income/ cost codes needed to determine whether a transaction is interest related were not available for 

years prior to Fiscal Year 1978 and, tiierefore, interest receipts could not be identified for comparison. 

We performed, for informational purposes only, pro forma calculations of interest income on 
uninvested funds for Fiscal Years 1978 through 1992 for ail of Oie Tribe's Trust accounts. This 
calculation is an estimate of what might have been earned had uninvested funds yielded returns 
comparable to the Benchmark rates. The calculation is an automated calculation of interest based on 
Bureau provided general ledger reported balances and tfie Benchmark rates. 

SUPPLEMENTAL INFORMATION 

The following summary compares ihe pro forma calculated interest to Bureau postings of interest for 
actual earnings on cash balances. The calculation and comparison is for informational purposes only, 
provided at ttie request of the Bureau. It is a tiieoretical estimation of what might have been earned on 
cash balances, had the funds been invested at the investment rates provided. No investigation was 
made to explain variations or resolve timing differences of cash basis interest postings. Variances do 
not represent exceptions resulting in proposed adjustments. 

nNDINGS 

See Attachment B-3a for "Summary of Pro Forma Results for the Tribe". 



Attachment B Part 2 to Boswell Declaration 

-41- 0694 



Case 1:06-cv-01897-JR Document 26-8 Filed 08/11/2007 Page 33 of 44 



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Attachment B Part 2 to Boswell Declaration 



0695 



Case 1:06-cv-01897-JR Document 26-8 Filed 08/11/2007 Page 34 of 44 



SAMPLE 
For Discussion Purposes Only 



VS. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 
SUMMARY OF ANALYHCAL REVIEW PROCEDURES 



PROCEDURES 

We prepared graphs for non-investment and non-^dgment receipt and disbursement transactions (see 
Attachments A-1 and A-2 for "Simimary of Basic Reconciliation Results for All Tribes" and "Summary 
of Basic Reconciliation Results for title Tribe") for Fiscal Years 1978 through 1992 (see Attachment C-1 
for "Analytical Review Graphs for the Tribe", if applicable). 

In addition, for fifteen (15) tribes selected by the Bureau, we investigated imusual fluctuations in 
receipts and disbursements activity (see Attachment C-2 for "Summary of Analytical Review 
Procedures and Reportable Conditions for tiie Tribe", if applicable). 



Attachment B Part 2 to Boswell Declaration 

0696 
^3- 



Case 1:06-cv-01897-JR Document 26-8 Filed 08/11/2007 Page 35 of 44 

SAMPLE 
For Diacuaaion Purposes Only 

US. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 
ANALYTICAL REVIEW GRAPHS FOR THE TRIBE 

This Tribe did not have non-investment and non-judgment receipts and disbursement transactions for 
Fiscal Years 1978 through 1992. 



Attachment B Part 2 to Boswell Declaration 

-44- 0697 



Case 1:06-cv-01897-JR Document 26-8 Filed 08/11/2007 Page 36 of 44 



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Attachment B Part 2 to Boswell Declaration 



0698 



Case 1:06-cv-01897-JR Document 26-8 Filed 08/11/2007 Page 37 of 44 



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Attachment B Part 2 to Boswell Declaration 



0699 



Case 1:06-cv-01897-JR Document 26-8 Filed 08/11/2007 Page 38 of 44 



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0700 



Case 1:06-cv-01897-JR Document 26-8 Filed 08/11/2007 Page 39 of 44 



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0701 



Case 1:06-cv-01897-JR Document 26-8 Filed 08/11/2007 Page 40 of 44 



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Attachment B Part 2 to Boswell Declaration 



0702 



Case 1:06-cv-01897-JR Document 26-8 Filed 08/11/2007 Page 41 of 44 



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Attachment B Part 2 to Boswell Declaration 



0703 



Case 1:06-cv-01897-JR Document 26-8 Filed 08/11/2007 Page 42 of 44 



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Attachment B Part 2 to Boswell Declaration 



0704 



Case 1:06-cv-01897-JR Document 26-8 Filed 08/11/2007 Page 43 of 44 



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0705 



Case 1:06-cv-01897-JR Document 26-8 Filed 08/11/2007 Page 44 of 44 



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Attachment B Part 2 to Boswell Declaration 



0706 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page lot 34 



ATTACHMENT B 



TO BOSWELL 



DECLARATION 



PART 3 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 2 of 34 

nviEN 

Page 1 of 1 



SAMPLE ATTACHMENT C-2 

For DucuMtofi Purpoa«* Only 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

SAMPLE 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF ANALYHCAL REVIEW PROCEDURES AND REPORTABLE CONDITIONS FOR 

THE TRIBE 



This Tribe was not selected for performance of Anaiyticad Review Procedures. 



-m 



Attachment B Part 3 to Boswell Declaration 

-54- 0707 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 3 of 34 

SAMPLE ATTACHMENT C-2 

For Discuaaion Purpoaea Only Paee 1 of 3 

U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

-- ^ -, SA£.lFIri-*^ ■ 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF ANALYTICAL REVIEW PROCEDURES AND REPORTABLE CONDITIONS FOR 

THE TRIBE 

PROCEDURES 

We reviewed Ae Tribe's account statement detail of transactions (for Fiscal Years 1978 through 1992, 
as income/ cost codes were not available for years prior to Fisced Yeju: 1978) discussed in the "Basic 
Reconciliation Transactions" and investigated judgmentally identified unusual fluctuations in receipts 
aind disbursements. Below are the general procedures that were performed: 

• Reviewed statement histories for Tribe's accounts and documented potential problem areas (i.e., 
unusual fluctuations in receipts, disbursements, etc.). 

• Followed-up with the Bureau or Tribe |>ersonneI and reviewed supporting documentation as 
appropriate for items identified above. 

a Depending on the type of receipt being tested and documents being reviewed, documented any 
unusual or questionable transactions or docimients such as: 

o Unexplainable fluctuations in receipts 

o Unusually large or small receipts 

o Unusually large or inconsistent disbursements 

o Inconsistent transaction volumes 

o Misclassification of receipt types 

In order to apply analjrtical review procedures, we have identified a number of assumptions which we 
believe can reasonably be applied to the data. In generaL it is assumed that the vast majority of the 
transactions for the Tribe are regular and recurring, and of relatively simiku dollar amoimts based on 
the fact that almost all of the Tribe's revenues are from annual lease agreements. Therefore, logical 
relatioitships between information fields have been established by applying the following procedures. 
By appfying diese procedures we have identified conditions where the expected relationship is not 
apparent 

a Summarized the receipt and disbursement data in graphic and table form to identify trends and 
any luiusual deviations. Noted any situation that appeared to be vmusual or inconsistent to us and 
required furdier explanation. 

• Investigated the causes of the situations discovered during summary review. Attempted to 
resolve each condition by examining the individual transactions and source documents, if 
available. 

• For each finding not satisfactorily resolved by examining transaction detail and source documents, 
we presented the results of our investigation to die Bureau for further review. 

• Documented and reported aU findings, regardless of resolution. 



Attachment B Part 3 to Boswell Declaration 



-55- 0708 



# 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 4 of 34 

^ ^ SAMPLE ATTACHMENT C-2 

For UMCuasion Furpoaes Only _, _ , _ 

' Page 2 of 3 

us. DEPARTMENT OF THE INTERIOR 
BUREAU OF INDIAN AFFAIRS 
TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

SAMPLE 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF ANALYTICAL REVIEW PROCEDURES AND REPORTABLE CONDmONS FOR 

THE TRIBE 



SUPPLEMENTAL INFORMATION 

An amalytical review of the Tribe's non-judgment award accounts was conducted for 

anomalies such as unusual fluctuations in receipts, large disbursements, etc. that may indicate 
potential problem areas witii the collection and posting of receipts and disbursements. 

Analytical review is a high-level process to identify whether data and identified relationships are 
reasonable in relation to trends and odier expectations. Analytical review procedures are intended to 
enhance an overall understanding of flie data and to reveal apparent inconsistencies that may not be 
identified tiirough the use of detailed testing. 

Analytical review is by nature, a judgmental task. No standard list of procedures exists to apply to 
every situation. As such, the results of actual services performed are reported for the Bureau's 
consideration emd acceptance. Analytical review procedures are intended to supplement substantive 
procedures performed; they cannot be expected to uncover all existing or potential problems. 
Inconsistencies and abnomudities in the trsmsaction data are not always caused by inappropriateor 
improper actions, nor do all inappropriate or improper actions cause significzmt fluctuations in 
expected data relationships. 

The Bureau has directed Arthur Andersen LLP to apply analytical review procedures to the receipt 
and disbtusement transaction data from Fiscal Years 1978 through 1992 (i.e., income/ cost codes not 
available prior to Fiscal Year 1978) for the Tribe. Interest receipts were included in the graphical data 
in order to accurately compare disbursements widi receipts. The source documentation for ttie 
procedures was the general ledger transaction data supplied by the Bureau. 



Attachment B Part 3 to Boswell Declaration 

-56- 0^09 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 5 of 34 



SAMPLE 
For Discuaaion Purposes Only 



ATTACHMENT C-2 
Page 3 of 3 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

"" ^ bAMFEE " 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF ANALYTICAL REVIEW PROCEDURES AND REPORTABLE CONDITIONS FOR 

THE TRIBE 

As a resiilt of our analytical review procedures, below is a list of conditions that were determined to 
be unusual and, therefore, reportable. 



Description of Conditions 



Results of Arthur Andersen LLP Follow-Up/ 
Bureau Response 



A) "Other Receipts" increased in 
Fiscal Years 1981, 1982, 1985, 1988 
and 1989 compared to other years 
presented (see Graph B). 



B) "Oil and Mineral Receipts" 
increased in Fiscal Years 1981, 
1982, 1984, 1985, 1987 and 1989, 
decreased in Fiscal Years 1983, 
1986, 1988, 1990, 1991 and 1992 
compared to other years 
presented and there were no 
receipts in Fiscal Years 1978, 1979 
and 1980 (see Graph Q. 

Q "Surface Receipts" increased in 
Fiscal Years 1981, 1982 and 1985 
compared to other years 
presented and tiiere were no 
receipts in Fiscal Years 1978, 1979 
and 1980 (see Graph E). 



D) "Total Disbursements" exceeded 
"Total Receipts" by approximately 
20% in Fiscal Year 1983, 11% in 
Fiscal Year 1986, 14% in Fiscal 
Years 1987 and 1988, 12% in Fiscal 
Year 1989 and 9% in Fiscal Year 
1992 (see Graphs G and H). 



We reviewed sbc (6) receipts totaling $179,252 for the Fiscal Years 
1981, 1982, 1985, 1988, and 1989. Five (5) receipts included 
miscellaneous income from Tribal office for deposit to Tribcd 
Treasury; payments for right-of-way; transfer of Indian Money 
Proceeds of Labor Escrow account funds to 
treasury trust accounts; crossing permit for sheep; land lease 
rental; and royalties for vanadium concentrates from 
phosphate shale, respectively. One (1) receipt (BBllKOOOl) for 
$41380 in Fiscal 1988 was not provided to us for review. 

We reviewed seventeen (17) receipts totaling $4,927,114 from 
Fiscal Years 1978 through 1992. All were mineral related (i.e., 
properly classified). From the documentation available, no 
expUmation cam be provided for the condition. 



We reviewed nine (9) receipts totaling $1,587^90 from Fiscal 
Years 1978 through 1982 and 1985. Eight (8) receipts were surface 
lease related (i.e., correctly classified). One (1) receipt for $130,576 
was to transfer funds from the Individual Indian Money accounts 
to Tribal Trust account There was no indication as to the purpose 
of this transfer. From the documentation available, no 
explanation can be provided for the condition. 

No explanation could be provided for the conditions. 



Attachment B Part 3 to Boswell Declaration 

-57- 



0710 



Case 1 :06-cv-01 897-JR Document 26-9 Filed 08/1 1/2007 Page 6 of 34 

SAMPLE ATTACHMENT D-1 

For I>McuMion Purpomea Only p ^ gf 2 

US. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

SAMPLE 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF MONEYMAX SYSTEM TO FINANCE SYSTEM RECONCILIATION 

PROCEDURES 



PROCEDURES 

We reconciled ti\e MoneyMax System (Bureau investment subsidiary detail) investment balances to the 
Finance System (general ledger) investment balances for all Tribes as of September 30, 1992, with the 
exception of certain investment tT<msactions affecting several tribes which were reconciled internally by 
the Bureau. Any adjustments resulting from such intenud reconciliations are not reflected in this report 
or in the accompan}dng Tribal accoxmt statements. Following is a list of tribes for which the Bureau 
proposed and/ or posted adjustments subsequent to September 30, 1992 as a result of internal 
reconciliation efforts: 

Sioxix San Luis Rey Tribal Development 

Comanche Tribe of Oklahoma Hoopa Valley Tribe 

Fort Belknap Indian Community Pueblo of Laguna 

Tlingit - Haida Alaska Soutiiem Ute Tribe 

Lac Courte Oreilles Band of Chippewa Indians Ute Mountain Ute Tribe 

Tohono O' Odham Nation of Arizona Mescalero Apache Tribe 

Salt River Pima - Maricopa Indian Community The Navajo Tribe 

San Carlos Apache Tribe Nez Perce Tribe of Idaho 

Confederated Tribes of Grande Ronde Community Confederated Tribes of Warm Springs Reservation 

TE - Moak Band of Western Shoshone Houlton Band of Maliseet Indians of Maine 

Hopi Tribe of Arizoiia Spokane Tribeof Indians 

Three Affiliated Tribes of the Fort Berthold Confederated Tribes and Bands of the Yakama 

Reservation Indian Nation 

Assiniboine and Sioux Tribes of Ft Peck Indian Ute Indian Tribe Uintah and Ouray Reservation, 

Reservation Utah 

We performed MoneyMax System to Finance System reconciliations by performing the following 
procedures: 

• We researched all reconciling items that were not timing differences to establish the need for any 
adjustments to either sjnstem. 

• We prepared, documented and recorded the necessary adjustments. 

• For montiis showing significant variations, we compared die transactions ffom the MoneyMiU( 
monthly journals to the Finance System General Ledger Detail List or Monthly Jounuds of 
Transactions for the month, if available. 

• We requested supporting documents ffom the Bureau in order to reconcile the items identiffed. 
Reconciling items for which the Bureau could not locate supporting documents or for which the 
Bureau determined to be immaterial were reported as unsupported variances (see Attachment D- 
la for "Summary of MoneyMax System to Finance System Reconciliation Results for All Tribes"). 

Attachment B Part 3 to Boswell Declaration 

-58- 0711 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 7 of 34 

SAMPLE ATTACHMENT D-1 

For Dwcuaaion PurpoMs Only p -j f •> 

U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

-„,.,.„ SAMTLE- 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF MONEYMAX SYSTEM TO FINANCE SYSTEM RECONCILIATION 

PROCEDURES 



We delivered to the Bureau a Summary of System Balances for Fiscal Year 1992, if applicable, with a 
detailed list of reconciling items, and a Summary of Proposed Reconciliation Adjustments for Fiscal 
Year 1992 with copies of supporting documents. 

SUPPLEMENTAL INFORMATION 

The objectives have been included here as supplemental information to the reader. No conclusions 
have been made regarding ttie achievement of ttiese ofcjjectives by appljing tiie agreed-upon 
procedures. 

Contract Objectives 

The primary objective of the reconciliation project was to reconstruct historical transactions, to the 
extent practicable, for all years where records were available for ail Tribal Trust accounts managed by 
the Bureau. 

Objectives 

• To ensure that transactions and balances recorded in tiie MoneyMax System agree with balances 
recorded in the Finance System. 

• To ensure that required adjusting entries are posted to the respective systems in a timely manner. 
FINDINGS 

See Attachment D-la and D-lb for "Summary of MoneyMjix System to Finance System Reconciliation 
Results for All Tribes" and "Summary of MoneyMax System to Finance System Reconciliation for tiie 
Tribe", respjectively. 



Attachment B Part 3 to Boswell Declaration 

0712 
-59- 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 8 of 34 



SAMPLE 
For Diacuasion Purpoac* Only 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCIUATION PROJECT 



(Revised) 

ATTACHMENT D-la 

Page 1 of 1 



AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

SAMPLE 

FJLY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF MONEYMAX SYSTEM TO FINANCE SYSTEM RECONCILIATION RESULTS 

FOR ALL TRIBES 
(REVISED) 



Summary of the Tribal Variance 



Finance System Balan ce 



MoneyMax System Balance 

Variance 

Proposed Adjustments to Increase Fund Balance (1) 

Proposed Adjustments to Decrease Fund Balance (1) 

Proposed Reclassification Adjustments (2) 

Proposed MoneyMax S)^tem Adjustments 

Bureau Proposed Adjustments (4) 

Unsupported Variances (5) 

Total Variances 



1,340,17Z625 
1,351,185,808 



$ 


11,013,183 


$ 


8,587,295 




(1,039,861) 




1,706,592 




(102,841) 




1,865,611 




(3,613) 


11,013,183 



(1) Proposed adjustments representing an increase or decrease to the Tribes' net assets. 

(2) Proposed adjustments representing a reclassification between cash and investment balances for 
the Tribes and do not result in an increase or decrease in the Tribes' net asset balances. 

(3) These are proposed adjustments to the investment subsidieuy records used by the Bureau. These 
corrections did not affect the Tribes' reported accojuit statement balances. 

(4) These are adjustments proposed by the Bureau as a result of internal reconciliation efforts. These 
adjustments are not included in the accompanying Tribal account statements. 

(5) These are unsupported variances for which no adjustments were proposed as requested by the 
Bureau due to insignificance of amounts. 



Attachment B Part 3 to Boswell Declaration 

-60- 



0713 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 9 of 34 

SAMPLE _^ 

For DiscuMion Purpose* Only ATTACHMENT D-lb 

U5. DEPARTMENT OF THE INTERIOR ^*^^ ^ °^ ^ 

BUREAU OF INDIAN AFFAIRS 
TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

" ~ SAMPLE 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF MONEYMAX SYSTEM TO FTNA N CE SYSTEM RFC ONCnJATinN RFgTn TQ 

FORTHETRIBF. 

^te^^^ adjustments affecting the Tribe are reported in the accompanying Tribal Account 



Attachment B Part 3 to Boswell Declaration 

0714 
-61- 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 10 of 34 

SAMPLE ATTACHMENT D-2 

For Diacuaaion Purposes Only Page 1 of 2 

U5. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

SAJviFLE 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF U.S. TREASURY SYSTEM TO nNANCE SYSTEM RECONCILIATION 

PROCEDURES 



PROCEDURES 

We reconciled Fiscal Year 1992 Bureau cash transactions reported by the US. Treasury (Treasury) to 
die Bureau's Finance System (General Ledger System Reconciliation) and reports submitted to the 
Treasury (Treasiiry Repocting^Recondliation). The resulting variances were investigated for tribal 
trust funds (Appropriation 8365) and resolved, to the extent supporting documentation was provided 
by tiie Bureau. 

General Ledger System Reconciliation 

1. We matched Fiscal Year 1992 cash transactions from the Bureau's general ledger system with the 
individual cash transactions processed by the Treasury for all Bureau fxmds as reported on the 
Treasury's Govenunent On-Line Accounting Link System (GOALS) reports arul other Treasury 
reports. 

2. We requested supporting documents from the Biu'eau for all reconciling variances relating to 
tribal trust funds (appropriation 8365). We proposed general ledger adjusting entries for those 
tribal variances having supporting documentation and concurred with by the Bureau. Tribal 
variances for which tfie Bureau could not locate supporting documents were noted as uiuesoived 
and no adjusting entries to tite general ledger were proposed. 

Treasury Reporting Reconciliation 

1. We matched the tribal trust general ledger cash transactions for Fiscal Year 1992 to transactions 
reported to Treasury on the SF224 reports and sununarized by Treasury on TFS 6653 reports. 

2. We requested supporting documents from the Bureau for all reconciling variances relating to 
Tribal Trust Funds (appropriation 8365). We proposed SF224 reporting corrections for those 
Tribal Trust variances having supporting documentation and concurred with by the Bureau. 

SUPPLEMENTAL INFORMATION 

The objectives have been included here as supplemental information to the reader. No conclusions 
have been made regarding the achievement of tihese objectives by applying tiie agreed-upon 
procedures. 

Contract Objectives 

The primary objective of the recondiiation project was to reconstruct historical transactions, to the 
extent practicable, for all years where records were available for all Tribal Trust accounts marwged by 
the Bureau. 



Attachment B Part 3 to Boswell Declaration 

-62- 0715 



Case 1 :06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 1 1 of 34 

SAMPLE 
For DiKuMion PuipoM* Only ATTACHMENT D-2 

, r. Page 2 of 2 

U.S. DEPARTMENT OF THE INTERIOR 
BUREAU OF INDIAN AFFAIRS 
TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF U.S. TREASURY S YSTEM TO FINANCE SYSTEM RECONriLIATION 

PROCEDURES 

Objectives 

• To ensure that transactions recorded in the U.S. Treasury System agree with transactions recorded 
in the general ledger. 

• To ensure that proposed reconciliation adjustments are documented and presented to tiie Bureau. 
FINDINGS 



See Attachments D-2a and D-2b for "Summary of U.S. Treasury System to Finance Syste 
Reconciliation Results for AH Tribes" and "Summary of U.S. Treasury System to Finance Syste: 
Recondiiation Results for the Tribe", respectively. 



im 

:m 



Attachment B Part 3 to Boswell Declaration 



-63- 0716 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page12of34 



SAMPLE 
Kir DUcuaaion Purpoaa Only 



ATTACHMENT D-2a 
Page 1 of 2 



US. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

SAMPLE 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF U.S. TREASURY SYSTEM TO HNANCE SYSTEM RECONCILIATION RESULTS 

FOR nSCAL YEAR 1992 FOR ALL TRIBES 



Summary of the General Ledger System Reconcaiation (all Fiind Groups) 
Treasiuy System net 1992 Cash Transactions $ 



Unadjusted Bureau General_Ledger net 1992 Cash Transactions 
Adjustments: 

Plus - net Timing Differences (1) 
Less - net Non-U.S. Treasury Transactions (2) 



17,638.536 



27,976,142 

12,758,779 
10,128,964 



Adjusted Bureau General Ledger net 1992 Cash Transactions 

Net Variance between US. Treasury System and 
Adjusted General Ledger 



30,605,957 



12,%7,421 



Net Reconciliation Results: 

Non-Tribal Variances 
Tribal Vaiiances 
Uruesolved Variances (5) 

Net Variance 

Summary of Net Tribal Variance: 

Adjustments Proposed as a Result of Other Reconciliation Efforts (3) 
Date Exceptions (4) 
Adjustments Due From Tribes 
Adjustments Due To Tribes 

Net Variance 



(1) The general ledger transactions were adjusted to include only transactions with Fiscal Year 1992 
effective dates. Transactions with effective dates outside of Fiscal Year 1992 would need to be 
considered in their respective years. 

(2) Amounts included in tfie general ledger but not included in the Treasury System Reports 
previously defined. These transactions were included in the reconciliation of transactions 
reported to the Treasury (see Reporting Variances in the findings section). 



$ 


14341,193 
(1,366356) 
(7,416) 


$ 


12,967,421 


$ 


(378,824) 

(258,731) 

(769,744) 

40,943 


$ 


(1366356) 



Attachment B Part 3 to Boswell Declaration 
-64- 



0717 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 13 of 34 

SAMPLE ATTACHMENT D-2a 

For L>uKuuionPurpc»e* Only „ 

^^ ^ Page 2 of 2 

U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONOUATIGN PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF U.S. TREASURY SYSTEM TO FINANCE SYSTEM RECONCILIATION RESULTS 

FOR nSCAL YEAR 1992 FOR ALL TRIBES 



(3) This includes adjustments that were identified in Treasury System reconciliation efforts, but were 
already identified and proposed as adjustments under Basic Reconciliation, MoneyMax 
Reconciliation or Yield Analysis. 

(4) This represents the value of tribal transactions which have incorrect effective dates. The interest 
impact of these transactions has been considered in our ovemighter recalculation and ttie 

- adjustments reported in Attachment B-2a, if applicable. 

(5) These transactions represent differences that could not be resolved based upon die available 
documentation. No adjustments to die general ledger were proposed. 

Summary of the Treasury Reporting Reconciliation 

Following is a summary of the results of our procedures to match the Tribal Trust general ledger cash 
transactions for Fiscal Year 1992 to transactions reported to Treasury on the SF224 reports and 
summarized by Treasury on the TFS 6653 reports. 

Net Tribal Trust General Ledger Transactions $ 59,560,949 

Net Tribal Trust Transactions Reported to Treasury 45,900,102 

Total Reporting Variance Reconciled $ 13,660,847 

Adjustments/Exceptions Identified as a Result of General Ledger System 

Recpndliation (see Attachment D-2a, Page 1 of 2) $ (i;366,356) 

Reporting Corrections needed to SF224 Reports (1) 15,027,203 



$ 13,660347 



(1) This amount represents errors in amounts reported to Treasury on SF224 reports. This amount 
does not result in adjustments to the general ledger. 



y 



Attachment B Part 3 to Boswell Declaration 

-65- 0^^8 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 14 of 34 

-lENTl 
Page 1 of 1 



SAMPLE ATTACHMENT D-2b 

For Ducuaaion PuipoMS Only 



U5. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

SA?.€Pl.E 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF U.S. TREASURY SYSTEM TO FINANCE SYSTEM RECONCILIATION RESULTS 

FOR nSCAL YEAR 1992 FOR THE TRIBE 



Any resulting adjustments affecting the Tribe are reported in the accompanying Tribal Account 
Statements. 



Attachment B Part 3 to Boswell Declaration 

-66- 0719 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page15of34 

SAMPLE 
For DiacuMion PurpoMs Only ATTACHMENT E 

us. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 



JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 
SUMMARY OF DEPOSIT TAG TIME PROCEDURES 



PROCEDURES 



We compared, for informational purposes only, the lag time from the apparent date of receipt of hinds 
to the deposit date posted to the general ledger accounts and summarized the results. 

SUPPLEMENTAL INFORMATION 

Deposit lag times represent the number of days from the date funds are receh^ed (by the Bureau) to 
the date funds are deposited into a Federal Depository (tfie bank). The date funds are actually 
received is not always clearly documented on a receipt document (coDection vouchers, field receipts, 
etc.). Thus, pnonties for selecting these dates were established by the Bureau. These dates do not 
necessarily represent the date funds were actuafly received. The criteria for selecting the "receipt date" 
m order of priority are as follows: 

1. The "receipt date" on the collection voucher, if clearly indicated. 

2. The date on aie collection voucher that is the most recent date subsequent to the check 
date, if a check date is indicated. This apparent date of receipt could be represented 
by: 

• A stamp date indicating when the collection voucher was processed. 

• The date ttie collection voucher was prepared. 

• The date tfie collection voucher was signed as approved. 

3. The bank accomplished date of ttje deposit ticket 

The date of deposit into the bank is defined as the effective date of the transaction posted to the 
general ledger. 

These deposit lag times have been acc umulated and reported for informational purposes only and 
have no t been treated as exceptions or adjustments 

FINDINGS 

See Attachment E-1 and E-2 for "Summary of Deposit Lag Time Results for All Tribes" and "Summary 
of Deposit Lag Time Results for the Tribe". Included in the zero days deposit lag time numbers are 
transactions in which a receipt date was not indicated on the Bill for CoUection, therefore, the date 
prepsu-ed (per deposit ticket) was used. 

The schedule summarizes lag times identified for collections transactions (CT's) at the Bureau 
Area/ Agency office level that were reconciled from July 1, 1972 through September 30, 1992. The 
schedule excludes any CTs that net to zero (le., reversals/ corrections). 



Attachment B Part 3 to Boswell Declaration 

-67- 0720 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page16of34 



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Attachment B Part 3 to Boswell Declaration 



0791 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page17of34 

for DiKUMion PurpoM. Only ATTACHMENT F 

Page 1 of 3 
US. DEPARTMENT OF THE INTCRIOR 
BUREAU OF INDIAN AFFAIRS 
TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

'—^-■-"^ SAMPLE - " - -■- 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF FILL THE GAP PROCEDURES 

PROCEDURES 

On a sample basis, we verified (Le., traced and agreed) receipt amounts posted to the general ledger to 
original lease agreements, sales agreements, contracts, permits or other documentation as appropriate, 
to the extent provided, to determine that the amounts received and the aUocation of such amounts to 
general ledger accounts were properly recorded based on such documentation. 

FoUowing are tiie scopes and other procedures appUed in testing surface leases and timber sales as 
defined by tiie Bureau. 

Surface Lease Scopes 

Five Tribes Pilot Proiect 

The Five Pilot Tribes consisted of Flathead, Yakama, Hopi, Fort Berthold and Fort Peck. At the direction 
of the Bureau, we judgmentally selected 922 surface leases either from a manual hsting maintained by the 
Tribe/ Agency or from the surface lease database created by Arthur Andersen LLP in an attempt to 
produce an audit traU from the general ledger to the leases by identifying and summarizing lease 
information from collection vouchers. The results of this testing are included in the "Summary of Fill fte 
Gap Results for All Tribes" (see Attachment F-1). 

AH Tribes fexdudinf Five Tribes above> 

Per aie original contract as modified, we identified 6,446 leases with annual coUections greater ttian 
$5,000 from tiie surface lease database. However, due to time constraints, the Bureau directed us to select 
a number of leases ttiat could be tested given the revised time table (Le., completion by December 31, 
1995), therefore, we judgmentally selected 1399 surface leases from the original 6,446 leases. Ultimately, 
755 lease files were provided by ttie Bureau prior to discontinuing their efforts due to scope reductions 
and time consti-aints. Arthur Andersen LLP tested 692 leases but was unable to test 63 leases due to the 
following: twenty-sfac (26) leases contained income or other performance-based provisions titat are 
beyond the scope of our contract and tfiirty-seven (37) lease files contained insufficient documentation 
necessary to complete testing. The results of this testing are included in ti»e "Summary of Fill the Gap 
Results for AH Tribes" (see Attachment F-1). 

Surface Lease Procedures 
The following procedtires were applied to each lease chosen in our sample selection. 0722 

• We determined amounts due from the lease agreements and verified (i.e., traced and agreed) 
amounts to receipt documentation (Le., collection vouchers, Tribal receipts, etc.) and to general 
ledger postings. 

• We recalculated lease fees based on the methods described in the Code of Federal Regulations, if 
applicable. 

• We calculated late fees based on tfie contract provisions provided in each lease, if applicable. 

Attachment B Part 3 to Boswell Declaration 

-70- 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page18of34 

ForDUcu'.^'pLp<-«o„,y ATTACHMENT F 

Page 2 of 3 
U.S. DEPARTMENT OF THE INTERIOR 
BUREAU OF INDIAN AFFAIRS 
TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

JULY 1, 1972 THROUGH SEPTENfBER 30, 1992 
SUMMARY OF FILL THE GAP PROCEDURES 



Timber Sale Scopes 

Five Tribes Pilot Proiect 

At the direction of the Bureau, we judgmentally selected and tested 196 timber sales for 499 
production periods for Flatiiead and Yakama (Le., Hopi, Fort Berthold and Fort Peck had no timber 
sales). The results of this testing are included in the "Summary of Fill the GapResults for All Tribes" 
(see Attachment F-1). 

All Tribes fexcludine Five Tribes above) 

At the Bureau's direction, we judgmentally selected 200 production periods for 200 different timber 
sales for five (5) Tribes (Le., Hoopa, Makah, Spokane, Colville and Warm Springs) witti significant 
timber revenue. In totaL we tested 227 production months for 213 timber sales. The results of this 
testing are included in ttie "Summary of FiU the Gap Results for All Tribes" (see Attachment F-1). 

Timber Sale Procedures 

The following procedures were applied to each sale chosen in our sample selection: 
Value Verification 

• We verified (i.e., traced and agreed) prices paid per spedes for the selected production monAs to 
original timber sale contracts and price adjustment worksheets for subsequent periods (if 
applicable). 

Volume Verification 

• We tested volume by tracing volumes from weight tickets. Reports of Timber Cut (ROTQ, or 
similar documents to scaling sheet summaries and scaling tickets (if applicable) on a sample basis. 

Net Sales Value Calculation 

Net Volume per Species X Price per Species = Net Sales Value 

• We verified (Le., traced and agreed) timber revenues for the selected sales and production periods 
for which documentation was available by tracing calculated revenues (Net Sales Value) fiom log 
scale records to general ledger postings. 



Attachment B Part 3 to Boswell Declaration 

_ 0723 

-71- 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page19of34 

ForDi J;:;^'p!,po^O„.y ATTACHMENT F 

' Page 3 of 3 

U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 
,„^v.. SAMPLE ,^-^._ . 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF FILL THE GAP PROCEDURES 



SUPPLEMENTAL INFORMATION 

The objectives have been included here as supplemental information to the reader. No conclusions 
have been made regarding tfie achievement of these objectives by applying the agreed-upon 
procedures. 

Contract Objectives 

The primary objective of tiie reconciliation project was to reconstruct historical transactions, to ttie 
extent practicable, for all years where records were available for the Tribal Trust accounts managed by 
the Bureau. 

Objectives 

• To gain reasonable assurance that amoimts received for payment of leases/ contracts were proper. 

• To gain reasonable assurance that funds received in payment of leases/ contracts were credited to 
the appropriate Tribal account 

• To gain reasonable assunmce that the allocation of funds received in payment of leases/ contracts 
between Tribal and Non-Tribal was accurate. 

• To gain reasonable assiirance that all payments for leases/contracts with Tribal ownership 
interests were collected. 

FINDINGS 

See Attachments F-1, F-2 and F-3 for "Summary of Fill tiie Gap Results for All Tribes", "Summary of 
Surface Lease Results for tiie Tribe" and "Summary of Timber Sales Results for the Tribe", 
respectively, if applicable. 

Adjustments 

Any resulting adjustments affecting tiie Tribe are reflected in the accompanying Tribal Account 
Statements. 



Attachment B Part 3 to Boswell Declaration 

-72- 0724 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 20 of 34 



SAMPLE 
For Discusaion Purposes Only 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 
-- -'-'-<- SAMPLE - 
JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF FILL THE GAP RESULTS FOR ALL TRIBES 



ATTACHMENT F-1 
Page 1 of 1 



Type of Receipts 


Number of 
Leases/ 
Contracts 


Number of 

Production 

Periods 


Tribal Trust 

Amounts Due 

(1) 


Amounts 
Verified (2) 

$185,4493;^ 

340346,006 

74313374 

$600,809,250 


Difference (3) 

$1357,980 
1,048,041 
4,804,055 

$7,710,076 


Percent 
Verified 

(4) 


Surface Leases 

Timber Sales 

Oil and Mineral Sales 


1,614 
409 

227 


N/A 
714 
490 


$187,307,350 

341,894,047 

79317,929 

5608,519326 


99.01 
99.69 
93.94 


Totals 


Z250 


1,204 


98.73 % 



(1) Tribal Trust Amounts Due - In the case of surface leases, amounts represent rental amoimts, 
bonus payments, administrative fees and/or late fees due in accordance with the contractual 
terms of the lease agreements. In the case of timber sales and oil and minerals sales, amounts 
represent production due per our calculation of net sales value (i.e., volume verified to source 
documents multiplied by value verified to source documents). 

(2) Amounts Verified - Represent die Tribal Trust Amounts Due diat were verified (i.e. traced and 
agreed) to the Tribal Trust general ledger. 

(3) Difference - Represents amounts for which the collection or die posting of the amoimt due could 
not be verified due to inadequate audit trail and/ or inadequate documentation Altfiough 
summarized as a finding, adjustments were not proposed for &ese differences, with the exception 
of those taibes included in the Five Tribe Pilot Project for which different procedures were applied. 

(4) Percent Verified - Represents the percent of Ae amounts due for the specific leases selected and 
tested that were verified (Le., traced and agreed) to ttie Tribal Trust general ledger. 



Attachment B Part 3 to Boswell Declaration 



-73- 



0725 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 21 of 34 

SAMPLE ATTACHMENT F-2 

For Diacuasion Purpoaea Only PaZC 1 of 1 

US. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 
— SAMPLE 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF SURFACE LEASE RESULTS FOR THE TRIBE 



This Tribe was not selected for Surface Lease Testing. 



Attachment B Part 3 to Boswell Declaration 

-74- 0726 



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0732 



Case 1 :06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 28 of 34 



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Attachment B Part 3 to Boswell Declaration 



0733 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 29 of 34 

SAMPLE AJX^r^WAyTFl 

For Discuaaion Purpoaes Only 



US. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 
— SAMPLE 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF TIMBER SALES RESULTS FOR THE TRIBE 

This Tribe was not selected for Timber Sales Testing. 



Page 1 of 1 



Attachment B Part 3 to Boswell Declaration 

^2- 0734 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 30 of 34 



SAMPLE 
For Discuacion Purposes Only 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 
"""^''"" "' SAMPLE 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF TIMBER SALES RESULTS FOR THE TRIBE 



ATTACHMENT F-3 
Page 1 of 5 



Logging Unit 



"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Naine" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 

"Name" 



Production 


Amount Due 


Amoxmts 


Difference 


Percent 


Period (1) 


To Tribe (2) 
$ 335,181 


Verified (3) 
$ 335,181 


(4) 


Verified (5) 


10/78 


$ 


100.0 % 


9/76 


218,989 


218,989 


- 


100.0 


12/87 


43Z460 


43^460 


- 


100.0 


10/91 


69,201 


69,201 


- 


100.0 


12/77 


75,756 


75,756 


- 


100.0 


12/78 


87,246 


87,246 


- 


100.0 


1/91 


335,054 


335,054 


- 


100.0 


8/76 


71,014 


71,014 


- 


100.0 


11/76 


150347 


150347 


- 


100.0 


5/89 


61,751 


61,751 


- 


100.0 


5/87 


63,476 


63,476 


- 


100.0 


7/88 


274374 


274374 


- 


100.0 


7/90 


141,102 


141,099 


3 


100.0 


9/77 


197,871 


197,871 


- 


100.0 


5/87 


30,064 


30,064 


- 


100.0 


1/88 


113,018 


113,018 


- 


100.0 


6/87 


268300 


268300 


- 


100.0 


7/74 


149316 


149,516 


- 


100.0 


10/87 


53,424 


53,424 


- 


100.0 


10/77 


33,014 


33,014 


- 


100.0 


9/77 


390381 


390381 


- 


100.0 


11/91 


5Z828 


5Z828 


- 


100.0 


12/87 


312373 


312373 


- 


100.0 


6/75 


31386 


31386 


- 


100.0 


12/78 


490392 


490,182 


410 


99.9 


12/76 


59380 


59380 


- 


100.0 


9/76 


179323 


180,027 


(204) 


100.0 


8/76 


119342 


119,736 


(194) 


100.0 


5/92 


85,067 


85,067 


- 


100.0 


7/74 


153,319 


153311 


8 


100.0 


8/76 


74,033 


74,033 


- 


100.0 


6/89 


100,472 


100,472 


- 


100.0 


6/75 


47,779 


47,780 


(1) 


100.0 


6/92 


315328 


315328 


- 


100.0 


6/91 


158,927 


158,927 


- 


100.0 


9/74 


101378 


101313 


(435) 


100.0 


9/S9 


245,773 


245,773 


- 


100.0 


9-10/86 


360,283 


360,283 


- 


100.0 


5/77 


163371 


163371 


- 


100.0 



Attachment B Part 3 to Boswell Declaration 



-83- 



0735 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 31 of 34 

SAMPLE 
For DiKuwion Purposes Only ATTACHMENT F-3 

Page 2 of 5 

U5. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 
TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 
- SAMPLE 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 





Production 


Amount Due 


'»-**-' &«-,&% AAA 
Amounts 


Difference 


Percent 


Logging Unit 


Period (1) 


To Tribe (2) 
$ 88,654 


Verified (3) 
$ 88,654 


(4) 


Verified (5) 


"Name" 


5/89 


$ 


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"Name" 


12/91 


444,186 


444,186 


. 


100.0 


"Name" 


6/89 


15,104 


15,104 


. 


100.0 


"Name" 


2/79 


717,027 


717,027 


. 


100.0 


"Name" 


11/89 


70360 


70360 


. 


100.0 


"Name" 


6/76 


150,061 


150,061 


. 


100.0 


"Name" 


2/79 


83381 


83381 


_ 


100.0 


"Name" 


11/78 


133386 


133386 


_ 


100.0 


"Name" 


9/77 


30?,8S6 


302356 


^ 


100.0 


"Name" 


8/89 


130,204 


130,204 


, 


100.0 


"Name" 


7/91 


99,849 


99,849 


. 


100.0 


"Name" 


9/78 


270,055 


270,055 




100.0 


"Name" 


8/83 


177,720 


177,720 


. 


100.0 


"Name" 
"Name" 


9/87 
12/88 


161,281 
328,721 


169363 
328,721 


(8,082) 


100.0 
100.0 


"Name" 


1/79 


24Z139 


242,139 


. 


100.0 


"Name" 


6/92 


486,098 


486,098 


. 


100.0 


"Name" 


1/79 


308,903 


308,903 


. 


100.0 


"Name" 
"Name" 


6/75 
5/89 


50,164 
440,098 


51,612 
440,098 


(1,448) 


100.0 
100.0 


"Name" 


10/76 


134,602 


134,602 


_ 


100.0 


"Name" 


10/78 


340,142 


340,142 


. 


100.0 


"Name" 


5/89 


45385 


453a'5 


_ 


100.0 


"Name" 


6/76 


47,988 


47,988 


^ 


100.0 


"Name" 


6/76 


110,777 


110,777 


. 


100.0 


"Name" 


9/78 


135,248 


135,248 


. 


100.0 


"Name" 


12/86 


764357 


764357 




100.0 


"Name- 


10/75 


91,295 


91,295 


. 


100.0 


"Name" 


7/87 


176,750 
$ 13,151384 


176,750 
$ 13,161327 


- 


100.0 


Totals 


$ (9,943) 


100.0 % 



Attachment B Part 3 to Boswell Declaration 

-84- 



0736 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 32 of 34 

Page 3 of 5 



For DmJi^^pLpo^ Only ATTACHMENT F-3 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

_^.^ FOR 

SAMPLE 
JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF TIMBER SALES RESULTS FOR THE TRIBE 



The following is a column by column description for the "Summary of Timber Sales Results for the Tribe" 
beginning on page 1 of Attachment F-3. 

(1) Production Period - Represents the production period (i.e., month, quarter, billing period, etc.) 
judgementally selected and tested. 

(2) Amount Due To Tribe - Represents amount due per Artiiur Andersen LLP calculation of Net Sales 
Value (i.e., volume verified to source documents X value verified to source documents). 

(3) Amounts Verified - Represents the Tribal Trust Amounts Due that were verified (i.e., traced and 
agreed) to collection documentation and tiie Tribal Trust general ledger. 

(4) Difference - Represents the. (difference between "Amounts Due to Tribe" and "Amounts Verified" 
resulting in proposed adjustments. See "Detail of Timber Sales Proposed Adjushnents" on page 5 of 

(5) Percent Verified - Represents ttie percent of the "Amounts Due to Tribe"for the specific leases 
selected and tested that were verified (Le., traced and agreed) to collection documentation and the 
Tribal Trust general ledger. 



Attachment B Part 3 to Boswell Declaration 

-85- 0737 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 33 of 34 



SAMPLE 
For DiacuMion Pucpoaea Only 



U.S. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 

SAMPLE 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF TIMBER SALES RESULTS FOR THE TRIBE 



ATTACHMENT F-3 
Page 4 of 5 



Summary of Timber Sales Proposed Adjustments 



Principal 

Interest (1) 

Net Amount Due To (From) Account $ 





Due To 




Due From 








Accoimt 




Account 




Net 


$ 


433 


$ 


(10376) 


$ 


(9,943) 




1316 




(14,798) 




(13,482) 


$ 


1,749 


$ 


(25,174) 


$ 


(23,425) 



(1; Interest - Represents interest from the effective date of the adjustment through September 30, 1994. 
The interest impact was based on Bureau provided Benchmark rates (see Attachment B-1) based 
upon the overall yield of the invested pool and assumes annual compounding. Benchmarks are not 
representative of any single tribe's actual investment yields. 



Attachment B Part 3 to Boswell Declaration 



-86- 



0738 



Case 1:06-cv-01897-JR Document 26-9 Filed 08/11/2007 Page 34 of 34 



SAMPLE 
For [}»cuMion Purpose* Only 



VS. DEPARTMENT OF THE INTERIOR 

BUREAU OF INDIAN AFFAIRS 

TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

AGREED-UPON PROCEDURES AND FINDINGS REPORT 

FOR 
"^' " " SAMFLt 

JULY 1, 1972 THROUGH SEPTEMBER 30, 1992 

SUMMARY OF TIMBER SALES RESULTS FOR THE TRTBF 



ATTACHMENT F-3 
Page 5 of 5 



Detail of Timber Sales Proposed Adjustments 



Number 

1 

2 

3 

4 

5 

6 

7 

8 

9 
10 
11 
12 



Proposed Adjustments 



Logging Urut 



"Name" 
"Name" 
"Name" 
"Name" 
"Name" 
"Name" 
"Name" 
"N!:me" 
"Name" 
"Name" 
"Name" 
"Name" 



Production 




Period 


Type(l) 


7/90 


B 


12/78 


A 


9/76 


A 


8/76 


A 


7/74 


B 


6/75 


B 


9/74 


A 


9/87 


B 


9/87 


C 


9/87 


c 


6/75 


A 


6/75 


B 



EhieTo 



3 
410 



12 



Due From 



(204) 
(194) 

(1) 
(435) 

(4,188) 

(3,906) 

(1,447) 

(1) 



Totals 



433 



(10,376) 



Net Amount Due From Accoimt 



(9,943) 



(1) Type - Type A indicates proposed adjustment is the result of an exception noted during our value 
verification procedures. Type B indicates proposed adjustment is liie result of an exception noted 
during our volume verification procedures and Type C indicates proposed adjustment is the result 
of an exception noted during our net sales value calculation procedures. 



Attachment B Part 3 to Boswell Declaration 



-87- 



0739 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page1of36 



ATTACHMENT B 



TO BOSWELL 



DECLARATION 



PART 4 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page2of36 



Enclosure III 



Attachment B Part 4 to Boswell Declaration 0740 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page3of36 



Account Holders Distribution List 



Attachment B Part 4 to Boswell Declaration 0741 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page4of36 

ABERDEEN AREA (16) 



1 .) Jessie Taken Alive 

Standing Rock Sioux Tribal Council 
Agency Avenue 
Ft. Yates, ND 58538 

Fax 701-854-7299 

2.) Elmer White, Sr, Chairman 
Devils Lake Sioux Tribal Council 
Tribal Office / Main Street 
Ft. Totten. ND 58335 
701-766-4221 
Fax 701-766-4126 



3.) Twila Martin-Kekahbah, Chairperson 
Turtle Mt. Band of Chippewa 
Turtle Mt. Tribal Office 
Community Center BIdg 
Belcourt, ND 58316 
701-477-6451/5198 Fax 701-477-6836 



4.) Gregg Bouriand, Chaimian 

Cheyenne Riv^r Sioux Tribal Council 
Tribal OfTice / Main Street 
Eagle Butte, SD 57625 
605-964-4155 
Fax 605-964-41 51 

5.) Richard Allen, President 

Flandreau Santee Sioux Executive 
Committee / Tribal Office 
603 West Broad 
Flandreau, SD 57028 
605-997-3891 Fax 605-997-3878 

6.) Duane Big Eagle, Sr. Chainnan 
Crow Creek Sioux Tribal Council 
Tribal Office 
Ft Thompson, SD 57339 
605-245-2221/22 
Fax 605-245-2470 



7.) Michael Jandreau.Chainman 
Lower Brule Sioux Tribal Coundl 
Tribal Office 
Sitting Bull Street 
Lower Brule, SD 57548 
605-473-5561 
Fax 605-473-5606 



Pagel 



8.) Wilbur Between Lodges, President 
Oglala Sioux Tribal Council 
Red Cloud BIdg. 
Pine Ridge, SD 57770 
605-867-5821 
Fax 605-867-5659 

9.) William Kindle, President 
Rosebud Sioux Tribal Council 
Rosebud Tribal Council Office 
1 1 Legion Avenue 
Rosebud, SD 57570 
605-747-2381 
Fax 605-747-2243 

10.) Dannell Drapeau, Chairman 
Yankton Sioux Trit>e Business 
& Claims 
Main Street 
Marty, SD 57361 
605-384-3804/3641 
Fax 605-384-5687 

11.) Andrew Grey, Chaimian 

Sisseton-Wahpeton Sioux Tribal 
Council / Tribal Headquarters 
1000 Veterans Memorial Drive 
Agency Village, SD 57262 



12.) Gary Lasey, Chairman 
Omaha Tribal Coundl 
Tribal Office 
100 Main Street 
Macy, NE 68039 
402-837-5391 

13.) Fred Leroy, Chairman 
Ponca Tribe of Nebraska 
Tribal Office 
252-1 Spruce Ave 
Niobrara, NE 68760 
402-857-3391 
Fax 402-857-3736 

14.) Arthur Denny, Chairman 
Santee Sioux Tribal Coundl 
Tribal Office 
Box 163 
Niobrara, NE 68760 

402-857-2302 
Fax 402-857-2307 



Attachment B Part 4 to Boswell Declaration 



0742 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page5of36 



15.) John Blackhawk, Chairman 
Winnebago Tribal Council 
Blackhawk Community Center 
Hwy77 

Winnebago, NE 68071 
402-878-3100 
Fax 409-R7B-2963 



16.) Little Shell Tribe-Chippewa of Montana 
Pat Maki, Office Manager 
Little Shell Chippewa Indians of Montana 
105 Smelter Ave NE 
Great Falls, MT 59404 



Page 2 



Attachment B Part 4 to Boswell Declaration 



0743 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page6of36 



ANADARKO AREA (25) 



1 .) Charles Surveyor, Chairman 

Cheyenne-Ai^paho Business Committee 
100 Red Moon Circle 

405-262-0345 
Fax 405-262-0745 



2.) Kiowa Comanche & Apache 
Tribes of Indians 

Kiowa-Comanche-Apache Intertribal 
Land Use Committee 
Attn: Executive Director 
1401 Lawrie latum Rd (FSIS) 
Lawton, OK 73502 
405-248-6300 



6.) Wallace E. Coffey. Chairman 
Comanche Business Committee 
Attn: Lynn Waugua 
N of Lawton, 8 mi. on 1-44 
W. 1 mi. on Hwy 49 N. 1/2 mi. to 
Comanche Complex 
Lawton, OK 73502 
405-492-4988 
Fax 405-492-4981 

7.) Henry Kostzula, Chairman 
Apache Business Committee 
Attn: Bobby Jay 
620 E. Colorado 
Anadarko, OK 73005 
405-247-9493 
Fax 405-247-751 1 



3.) Ruey Darrow, Chairperson 

Fort Sill Apache Business Committee 

Attn: Sherelia Romonce 

2 1/2 mi. N. of Apache, Hwy 281 

Ft. Sill Apache Tnbal Complex 

Route 2, Box 121 

Apache, OK 73006 

405-588-2298 

Fax 405-588-3133 



8.) Wanda Stone, Chairperson 
Kaw Executive Council 
698 Grandview Dr. 
Kaw City, OK 74641 
405-269-2552 
Fax 405-269-2301 



4.) Gary McAdams, President 

Wichita & Affiliated Tribal Executive Committee 

1 mi. N. of Anadarko, Hwy 281 

1/4 mi. West 

Anadarko, OK 73005 

405-247-2425 

Fax 405-247-2430 



9.) Raymond Butler, Chairman 
Otoe-Missouria Tribal Council 
Route 1 . Box 62 
Red Rock, OK 74651 
405-723-4466 
Fax 405-723-4273 



5.) Wichita/Caddo/Delaware Indians 
Wichita & Affiliated Tribes 
Executive Committee 
Attn: President 
1 mi. N. of Anadarko 
1/4 mi. West 
Anadarko, OK 73005 
405-247-2425 



10.) Elizabeth Blackowl, President 
Pawnee Business Council 
Agency Road, BIdg. 64 
Pawnee, OK 74058 
918-762-3621 
Fax 918-762-2389 



Pages 



Attachment B Part 4 to Boswell Declaration 



0744 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page7of36 



1 1 .) Vernon Hunter, Acting Chairman 
Caddo Tribal Coundl 
Intersection of Hwys 152 & 281 
Binger Y 

Binger. OK 73009 
405-656-2344 
Fax 405-656-2892 



12.) Billy Evans Horse, Chainnan 
Kiowa Business Committee 
Hwy 9 W. of Carnegie 
Carnegie, OK 73015 
405-654-2300 
Fax 405-654-21 88 



13.) Lawrence, F. Snake 

Delaware Executive Committee 
Hwy 281 N. 2 mi. of Anadarko 
Anadarko, OK 73005 

405-247-2448 
Fax 405-247-9393 

14.) Larry Nuckolls, Governor 

Absentee-Shawnee Executive Committee 
2025 S. Gordon Cooper Drive 
Shawnee, OK 74801 
405-275-4030 
Fax 405-275-5637 

15.) John A. Barrett, Chairman 

Citizen Band Potawatomi Business Committee 

Attn: Ed Hemdon 

1901 S. Gordon Cooper Drive 

Shawnee, OK 74801 

405-275-3121 

Fax 405-275-0198 

16.) Lawrence P. MunBy, Chairman 
Iowa of OK Business Committee 
Route 1, Box 721 
Peridns, OK 74059 
405-547-2403 
Fax 405-547-5294 

17.) Kendall Scott, Chairman 

Kickapoo of OK Business Committee 
2 mi. N. of McCloud off Hwy 102 
McLoud, OK 74851 
405-964-2075 FAX 405-964-2745 



18.) Genevieve Pollack. Chairperson 
Ponca Business Committee 
5 mi. S. of Ponca City, Hwy 177 
Ponca City, OK 74601 
405-762-8104 
Fax 405-762-7436 



19.). Richard Comell. President 
Tonkawa Tribal Committee 
2 mi. E. of Tonkawa Hwy 60 
1 mi. S. on Allen Drive 
Tonkawa, OK 74653 
405-628-2561 
Fax 405-628-3375 

20.) Leon Campbell, Chairman 

Iowa of Kansas Executive Committee 
Route 1. Box58A 
White Cloud, KS 66094 
913-595-3258 
Fax 913-595-6610 

21 .) Fred Thomas, Chairman 

Kickapoo of Kansas Tribal Council 
Route 1,K20 Hwy 
Horton. KS 66439 
913-486-2131 
Fax 913-486-2801 

22.) Mamie Rupricki, Chairperson 

Prairie Band Potawatomi Tribal Council 

Attn: Mary Mitchell 

14880 K. Road 

Mayetta, KS 66509 

913-966-2255 

Fax 913-966-2144 

23.) Corbin Shuckahorse, Chairman 
Sax & Fox of Missouri Tribal Council 
Route 1 , Box 60 
Reserve, KS 66434 
913-742-7471 
Fax 91 3-742-3785 

24.) Dora Young, Principal Chief 

Sac & Fox Nation of OK Business Commi 

Attn: MaryMaitlin 

Route 2, Box 246 

Stroud, OK 74079 

918-968-3526 

Fax 918-968-3887 



Page 4 



Attachment B Part 4 to Boswell Declaration 



0745 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page8of36 



25.) Rolando A. Poncho, Chairman 
Alabama-Coushatta Tribal Council 
Attn: Donna Dickens 
Route 3, Box 640 
Livingston, TX 77351 
4CC -J^A 12^ > F.\X 439-563-43S7 



Page 5 



Attachment B Part 4 to Boswell Declaration ^"^"^^ 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page9of36 

BILLINGS AREA (8) 



1 .) Earl Old Person, Chairman 
Blaclcfeet Tribal Business Council 
Agency Square 
B;Tov/ninig, ^Tr ::S4i7 
406-338-7276 
Fax 406-338-7530 

2.) Clara Nomee, Madam Chairman 
Crow Tribal Council 
Hwy 212 & 1-90 
Crow Agency, MT 59022 
406-638-2601 
Fax 406-638-7283 

3.) Tracy C. King, President 
Ft. Belknap Indian Community 
RR1,Box66 
Hariem. MT 59526 
406-353-2205 
Fax 406-353-2797 

4.) John SunChild, Chairman 

Chippewa Cree Business Committee 

RR1.Box544 

Box Elder, MT 59521 

406-395^282 

Fax 406-395-4497 



5.) Llevando Fisher, President 
Northern Cheyenne Tribal Council 
128 Little Coyote Drive 
Lame Deer, MT 59043 
406-477-8284 
Fax 406-477-6210 

6.) Attn: John Capture. Chairman 
Gros Ventre Treaty Committee 
RR1.Box66 
Hariem. MT 59526 
406-353-2205 
Fax 406-353-2797 

7.) Richand Branner, Chairman 
Arapahoe Business Council 
533 Ethete Rd 
Ethete. WY 82520 
307-332-3120 
Fax 307-332-7543 

8.) Alfred Ward, Chairman 
Shoshone Business COuncil 
15 North ForicRd. 
Ft. Washakie, WY 82514 
307-332-3532 
Fax 307-332-3055 



Page 6 



Attachment B Part 4 to Boswell Declaration 



0747 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 10 of 36 



JUNEAU AREA (3) 



1.) Edward Thomas, President 
, . ,J'i?f3» S- H^'fia Centr?! Cci'nff' 
C/0 David Harrison & Associates 
505 Marquette NW, Suite 1 
Albuquerque, NM 87102 
505-843-8698 

2.) James Showatter, Tribal Chairman 
Kenaitz Indian Trit}e 
255 N. Ames St. 
Kenai,AK 99611 
907-283-3633 

3.) Native Village of Tetlin Alaska 
Attn: Tribal Chaimian 
General Delivery 
Tribal Administration BIdg 
Tetlin, AK 99779 
907-456-0222 



Page 7 

Attachment B Part 4 to Boswell Declaration 0^48 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 11 of 36 
MINNEAPOLIS AREA (32) 



1 .) Roger Prescott, President 

Lower Sioux Indian Community Council 
Rural Route 1 , Box 308 
Morton. MN 56270 
507-697-6185 - - — 

Fax 507-697-6110 

2.) Curtis Campbell Sr., President 
Prairie Island Community Coundl 
Minnesota Medewakanton Sioux 
5636 Sturgeon Lake Rd 
Welcti, MN 55089 
612-385-2554 
Fax 612-388-1576 



8.) Bobby Whitefeather, Chairman 
Red Lake Band of Chippewa Indians 
MN Tribal Council, Hwy 1 
Redlake. MN 56671 
2i&-679-3341 
Fax 218-679-3378 

9.) Majorie Anderson, Chairperson 

Mille L^cs Chippewa Business Committee 

HCR67BOX194 

Onamio, MN 56359 

612-532-4181 

Fax 612-532-4209 



3.) Gary Donald, Chairman 

Nett Lake Reservation Business 
Bois Forte Band of Chippewa 
5344 Lake Shore Or 
Nett Lake, MN 55772 
218-757-3261 
Fax 218-757-3166 



10.) Siariley<^rooks, Chaimfian 

Shakopee Sioux Community Council 
2330 Sioux Tribal NW 
Prior Lake, MN 55372 
612-445-8900 
Fax 612-445-8906 



4.) Robert (Sonny) Peacock, Chaimian 

Fond Du Lac Chippewa Business Committee 

105 University Rd 

Cloque, Wl 55720 

218-879-4593 

Fax 218-879-4146 

5.) Norman Deschamps, Chairman 

Grand Portage Chippewa Business Committee 

Hwy 61 North 

Grand Portage, MN 55605 

218-475-2277 

Fax 21 8-475-2284 



11.) Brotherton Indians - Wisconsin 
Brotherton Nation 
Attn: President 
2848 Witches Lake Rd 
Arbor Vitae,WI 54568 
715-542-3913 

12.) John Wilmer Sr., Chairman 

Bad River Band of Chippewa Tribal Council 

Old School Bldg 

County Tmnck A 

Odanah, Wl 54861 

715-682-7111 



6.) Alfred R. Pemberton. Chaimian 

Leech Lake Chippewa Business Committee 

Routes, 80x100 

Cass Lake, MN 56633 

218-335-8200 

Fax 218-335-8309 

7.) Darrell Wadens, Chairman 

White Earth Chippewa Business Committee 

Tribal Council Office Hwy 224 

White Earth, MN 56591 

218-983-3285 

Fax 218-983-3641 

Page 8 



13.) Alfred Trepanier. Chainman 

Lac Courte Oreilies Band of Chippewa 
Trepania Rd 
Hayward, Wl 54843 
715-634-8934 
Fax 715-634-4797 

14.) Thomas Maulson, President 
Lac Ou Flambeau Tribal Council 
418 Little Dines 
Lac Du Flambeau, Wl 54538 
715-588-3303 
Fax 715-588-7930 



Attachment B Part 4 to Boswell Declaration 



0749 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 12 of 36 



15.) Deborah Doxtator, Chairperson 
Oneida Tribal Council 
N 7210 Seminary Rd 
Oneida. Wl 54155 
414-869-2214 
Fax 414-869-2194 



16.) Phil Shopodock, Chairman 
Forest County Potawatomi 
Executive Council, Tribal Office 
Potawatomi Trail 
Crandon. Wl 54520 
715-478-2903 
Fax 71 5-478-5280 

17.) Rose Gumoe, Chairperson 

Red Cliff Band of Chippewa Tribal Council 

Administration BIdg 

Hwy13 

Bayfield, Wl 54814 

715-779-3700 

Fax 715-779-3704 



22.) Chloris A. Lowe Jr.. Chairman 
Ho-Chunk Nation of Wisconsin 
(formerly known as Wisconsin Winnebago Tribe) 
Tribal Council OfTice 
W 9814 Airport Rd 
Black River Falls, Wl 54615 
715-284-9343 
Fax 715-284-1760 — 

23.) John Teller. Chaimian 

Menominee Indian Tribe of Wisconsin 

Tribal Office Loop Rd 

Hwy 47 & Hwy 55 

Keshena,WI 54135 

715-799-5100 

Fax 715-799-4525 

24.) Nomnan Deschampe. President 

Minnesota Chippewa Tribal Executive Committee 

Track 33. Facility Center 

Cass Lake. MN 56633 

218-335-8581 

Fax 218-335-6562 



18.) Lewis Taylor, President 

St Croix Chippewa Tribal Council 

Triba! Council Office 

24663 Angeline Ave 

Hertel. Wl 54845 

715-349-2195 

Fax 715-349-5768 



25.) Jeff Partner, President 

Bay Mills Executive Council 
Tribal Office 
Route 1, Box 313 
Brimley, Ml 49715 
906-248-3241 
Fax 906-248-3283 



19.) Ariyn Ackley, Chainman 

Sokaogan Chippewa Tribal Council 

Tribal Council Office 

Route 1 , Box 625 

Crandon, Wl 54520 

715-478-2604 

Fax 715-478-5275 



26.) Kenneth Meshiguad, Chairman 

Hannahville Indian Community Council 
N 14911 Hannahville Blvd Rd 
Wilson, Ml 49896-9728 
906-466-2342 
Fax 906-466-2933 



20.) Virgil Murphy, President 

Stockbridge-Munsee Mohicans Tribal Council 

N 8476 Moh He Con Nuck Rd 

Bowler, Wl 54416 

715-793-4111 

Fax 71 5-793-4299 



27.) Phillip G. Peters St., Tribal Chief 
Saginaw Chippewa Tribal Council 
Tribal Office 
7070 E Broadway Rd 
Mt. Pleasant. Ml 48858 
517-772-5700 
Fax 517-772-3508 



21 .) Frederick Dakota, President 
Keweenaw Bay Tribal Council 
795 Michigan Ave 
Baraga, Ml 49908 
906-353-6623 
Fax 906-353-7540 



Page 9 



28.) Joseph B. Winchester, Chairman 

Pokogon Band of Potawatomi Indian of Michigan 

714 N Front Rd 

Dowagiac, Ml 49047 

616-782-6323 

Fax 616-782-9625 



Attachment B Part 4 to Boswell Declaration 



0750 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 13 of 36 



29.) Joseph C. Raphael, Chairman 
Grand Traverse Tribal Council 
Peshawbetown Community Center 
2605 NW Bayshore Dr 
Suttons Bay, Ml 49682 
616-271-353? - -- 

Fax 616-271-4861 



31.) Gailey Wanatee, Chief 
Sac & Fox Tribal Council 
3137 F Ave 
Tama, lA 52339 
515-484-4678/5358 
Fay?'' 5-4*^4^5424 



30.) John C. McGeshick, Chaimian 

Lac Vieux Desert Band of Lake Superior 

Chippewa Indians of Michigan 

E 23968 Choate Rd 

Watersmeet, Ml 49969 

906-358-4577 

Fax 906-358-4785 



32.) Ann Bolton. Superintendent 
Ottawa & Chippewa of Michigan 
c/o Michigan Agency 
2901.5 i-75 Business Spur 
SauK Ste. Marie, Ml 49783 
906-632-6809 



Page 10 



Attachment B Part 4 to Boswell Declaration 



0751 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page14of36 



MUSKOGEE AREA (17) 



1 .) Cherokee-Shawnee Business Council 
Don Green Feather, Chairman 

4'4 Mstin Street 

Jay. OK 74346 
918-456-0671 
Fax 913-456-6485 

2.) Curt Zunighn, Chairman 

Delaware Tribe of Oklahoma Indians 
Delaware Indian Business Center 
108 South Seneca 
Bartlesville. OK 74003 
918-336-5272 
Fax 918-336-5513 



8.) Hollis E. Rotjerts, Chief 
Choctaw Nation of Oklahoma 
1 6th & Locus* Street 
PO Drawer 1210 
Durant, OK 74701-1210 
405-924-8280 Fax 405-924-1 1 50 

9.) Penry Beaver, Principal Chief 
Creek Nation of Oklahoma 
Hwy 75 & Loop 56 
Okmulgee, OK 74447 
918-756-8700 
Fax 918-756-2911 



3.) Duke Harjo. Chief 

Alabama-Quassarte Tribal Town 
111 North 6th 
Henryetta, OK 74437 
918-652-8708 

4.) Chas. O. Tillman. Principal Chief 

Osage Nation of Oklahoma Tribal Council 

813 Grandview 

Pawhuska. OK 74056 

918-287-2495 

Fax 918-287-2257 

5.) Charley McGerh. Town King 
Thiopthlocco Tribal Town 
Interstate 40 #227. Clearview 
exit, go 2 biks. on right & into 
Driveway. BIdg is there 
Okemah. OK 74859 
918-623-2620 Fax 918-623-0419 



10.) Jerry Haney. Principal Chief 
Seminole Nation of Oklahoma 
NE Comer Hwy 270 & 56 Junction 
Wewoka. OK 74884 
405-257-6287 Fax 405-257-6205 

11.) Grace Goodeagle. Chairman 
Quapaw Tribe of Oklahoma 
Quapaw Tribal Business Committee 
2 1/2 mi. E of Quapaw on Future Farmer Rd 
Quapaw, Ok 74363 
918-542-1853 Fax 918-542-4594 

12.) George J (Buck) Captain, Chief 
Eastern Shawnee Tribe of Oklahoma 
127 W. Oneida 
Seneca, MO 64865 
918-666-2435 
Fax 918-666-3325 



6.) Joe Byrd, Principal Chief 
Cherokee Nation of Oklahoma 
3 1/2 mi. S of Tahlequah on Hwy 62 
Tahlequah, OK 74464 
918-456-0671 
Fax 918-456-6485 

7.) Bill Anoatubby, Governor 
Chickasaw Nation of Oklahoma 
520 E. Ariington 
Ada. OK 74820 
405-436-2603 F/^ 405-436-4287 



13.) Charies Dawes, Chief 
Ottawa Tribe of Oklahoma 
811 3rd Avenue NE 
Miami, OK 74355 
918-540-1536 
Fax 918-542-3214 

14.) Terry Whitetree, Chief 

Seneca-Cayuga Tribe of Oklahoma 
R 2301 E. Steve Owers Blvd. 
Miami. OK 74354 
918-542-6609 Fax 918-542-3684 



Page 11 



Attachment B Part 4 to Boswell Declaration 



0752 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 15 of 36 



15.) Leafoitl Bearskin, Chief 

Wyandotte Tribe of Oklatioma 

Hwy60 

Wyandotte. OK 74370 

918-678-2297 

Fax 918-678-294^ ~ 



17.) Donald E. Giles, Chief 

Peoria Indian Trit)e of Oklahoma 
118 S. 8 Tribe Trail 
Miami. OK 74354 
918-540-2535 



16.) Floyd Leonafd, Chief 
Miami Tribe of Oklahoma 
202 S. 8 Tribe Trail 
Miami. OK 74354 
918-542-1445 
Fax 918-542-7260 



Page 12 



Attachment B Part 4 to Boswell Declaration 



0753 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 16 of 36 



PHOENIX AREA (35) 



1.) Alvin Moyie, Chairman 

Paiute-Shoshone Tribe of Fallon 

8955 Mission Road 
— r^lloii, r,'evsds 894DS - 

Phone: 702/423-6075 

Fax: 702/423-5202 



2.) Theodore Smith, Sr., Chaimian 
Yavapai-Apache Com. Council 
Smith & Shaw Avenue 
Camp Verde, Arizona 86322 
Phone: 602/567-3649 
Fax: 602/567-3994 



8.) C/0 Jen Johnson, Chairperson 
Payson Indian Band 
Tonto Apache Tribal Council 
Tonto Reservation # ou" 
Payson, Arizona 85541 
Phone: 520/474-5000 
Fax: 520/474-9125 

9.) Sylvester Llston, Chairman 
Tohono O'Odham Nation 
Papago Agency/BIA 
Circle Dr.,Bldg. 49 
Sells, Arizona 85634 
Phone: 520/383-2221 
Fax: 520/383-3379 



3.) Peter Soto, Chairman 
Cocopah Tribal Council 
County 15 & Avenue G 
Somerton, Arizona 85350 
Phone: 520/627-2102 
Fax: 520/627-3173 



10.) Austin Nunez, Chairman 
San Xavier Indians 
2018 West San Xavier Road 
Tucson, Arizona 85746 
Phone: 520/294-5727 



4.) Daniel Eddy, Jr., Chairman 
Colorado River Tribal Council 
2nd Avenue & Mohave Road 
Parker, Arizona 85344 
Phone: 520/669-9211 
Fax: 520/669-5675 



11.) Martin J. Antone, Sr., Chairman 
Ak Chin Indian Community 
42507 W. Peters & Nail Road 
Maricopa, Arizona 85239 
Phone: 520/568-2227 
Fax: 520/254-6133 



5.) Patricia Madueno, Chairperson 
Fort Mojave Tribal Council 
500 Merriman Avenue 
Needles, Califomia 92363 
Phone: 619/326-4591 
Fax: 619/326-2468 

6.) Rex Ttlousi, Chaimian 
Havasupai Tribal Council 
Tribal Administration Office 
Supai, Arizona 86435 
Phone: 520/448-2961 
Fax: 520/448-2551 



12.) Clinton Pattea. President 

Fort McDowell Mohave-Apache 
Tribal Administration Building 
Fountain Hill, Arizona 85268 
Phone: 602/837-5121 
Fax: 602/837-1630 

13.) Mary V. Thomas, Governor 

Gila River Indian Community Council 

Comer Pima & Main 

Sacaton, Arizona 85247 

Phone: 520/562-3311 & 963-4323 

Fax: 520/562-3422 



7.) Oelbert Havatone, Chainman 
Hualapai Tribal Council 
941 Hualapai Way 
Peach springs, Arizona 86434 
Phone: 520/769-2216 
Fax: 520/769-2343 



14.) Ivan Makil, President 

Salt River Pima Community Council 
10005 East Osbom Road 
Scottsdale, Arizona 85256 
Phone: 602/941-7277 
Fax: 602/949-2909 



Page 13 



Attachment B Part 4 to Boswell Declaration 



Cili^A 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 17 of 36 



15.) Ronnie Lupe. Chairman 

White Mountain Apache Tribe 
202 East Walnut Street 
Whiteriver, Arizona 85941 
Phone: 520/338-4345 
Fax: 520/338-4778 



22.) Harrison Talgo, Sr, Chairman 
San Carlos Apache Tribal Council 
Administration Building 
San Carlos Avenue 
San Carlos, Arizona 85550 
Phone: 520/475-2361 
Fax: 520/475-2567 



16.) Gloria Bulletts-Benson, Chairperson 
Kaibab Paiute Tritjal Council 
250 North Pipe Spring Road 
Fredonia, Arizona 86022 
Phone: 520/643-7245 
Fax: 520/643-7260 



23.) Irwin E. Miller, Chairman 

Walker River Paiute Tribal Council 
Tribal Complex # 1 
Schutz, Nevada 89427 
Phone: 702/773-2306 
Fax: 702/773-2585 



17.) Stan Rice. President 
Yavapai-Prescott Indians 
530 East Menritt Street 
Prescott, Arizona 86301-2038 
Phone: 520/445-8790 
Fax: 520/778-9445 



24.) A. Brian Wallace, Chairman 
Washoe Tribal Council 
919 Highway 395 South 
Gardnerville, Nevada 89410 
Phone: 702/265-4191 & 883-1446 
Fax: 702/265-6240 



18.) Dale S Malotte, Chairman 
Tribal Council of the Te-Moak 
Western Tribe 
525 Sunset Street 
Elko. Nevada 89801 
Phone: 702/738-9251 
Fax: 702/738-2345 



25.) Jeri Johnson, Chairperson 
Tonto Apache Tribal Council 
Tonto Reservation # 30 
Payson, Arizona 85541 
Phone: 520/474-5000 
Fax: 520/474-9125 



19.) Wilson Crutcher, Chairman 

Ft. McDermitt Pauite & Northern Pauite 

Tribal Council 

111 North Road 

McDermrttt, Nevada 89421 

Phone: 702/532-8259 

Fax: 702/532-8913 



26.) Harien Pete, Chairman 
Goshute Business Council 
Goshute Tribal Headquarters 
Ibapah, Utah 84034 
Phone: 801/234-1136 
Fax: 801/234-6211 



20.) Rosalyn Mike, Chairperson 
Moapa Pauite Business Council 
# 1 Lincoln 

Moapa, Nevada 89025 
Phone: 702/865-2787 
Fax: 702/865-2875 



27.) C/O Beveriy Slack, Project Assistant 
Skull Valley Band of Goshute 
8 East Broadway, Suite 735 
Salt Lake City, Utah 84111 
Phone: 801/722-2406 



21 .) Norman Harry, Chairman 

Pyramid Lake Paiute Tribal Council 
C/O Tribal Building 
Nixon, Nevada 89424 
Phone: 702/574-1000 
Fax: 702/574-1008 



28.) Evelyn James, President 
Southern Paiute Nation 
Grey Hills High School 
Dorml.Rm 133 
Tuba City, Arizona 86045 
Phone: 520/283-4583/4587 
Fax: 520/283-5761 



Page 14 



Attachment B Part 4 to Boswell Declaration 



07^^ 



Case 1:06-cv-01897-dR Document 26-10 Filed 08/11/2007 Page 18 of 36 



29.) Artan Melendez. Chairman 
Reno-Sparks Tribal Council 
98 Colony Road 
Reno, Nevada 89502 
Phone: 702/329-2936 
Fax: 702/329-8710 



33.) Stacey Stahl, Chairperson 
Yerington Paiute Tribal Council 
171 Cambell Lane 
Yeringtyon, Nevada 89447 



30.) Robert Sam, Chairman 

Summit Lake Paiute Tribal Council 
655 Anderson Street 
Winnemucca, Nevada 89445-3657 
Phone: 702/623-5151 
Fax: 702/623-0558 



34.) Ruby Atnine, Chairperson 

Uintah & Ouray Tribal Bus. Com. 

988 South 7500 East 

Fort Duchesne, Utah 84026 

Phone: 801/722-5141 

Fax: 801/722-2374 



31 .) Matthew Leivas, Sr., Chairman 
Chemehuevi Tribal Council 
1990 Palo Verde Drive 
Havasu Lake, California 92363 
Phone: 619/858-4301 &4219 
Fax: 619/858-5400 

32.) Fritz Brovwi, President 

Quechan Indian Tribal Council 
350 Picacho Road 
Winterhaven, Califomia 92283 
Phone: 619/572-0213 
Fax: 619/572-2102 



35.) Alex Shepard, Chairman 
Paiute Tribe of Utah 
Paiute Tribal Council 
600 North 100 East Paiute Drive 
Cedar City, Utah 84720 
Phone: 801/586-1112 
Fax: 801/586-7388 



Page 15 



Attachment B Part 4 to Boswell Declaration 



0756 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 19 of 36 



SACRAMENTO AREA (52) 



1 .) Richard M. Milanovich 
Agua Caliente Tribal Council 
110 N. Indian Canyon Drive 
Palm Springs, CA 92262 
619-325-5673 
Fax 619-325-0593 

2.) Lawrence Cantrell, Chairman 

Indians of the Big Bend Henderson Rancheria 

Pit River Tribal Council 

20258 Tamarack Ave 

Bumey, CA 96013 

916-335-5421 

3.) Jennifer Fred, Acting Chaimian 
Cold Springs Rancheria 
32661 Sycamore Road 
Tollhouse, CA 93667 
209-855-5043 
Fax 209-855-8359 

4.) Oelbert Benjamin, Chairman 
Colusa Rancheria 
50 WJntun Rd, Council BIdg 
Colusa. CA 95932-0008 
916-458-8231 
Fax 916-458-2018 



8.) Richard Wilder, Chairman 
Fort Independence Indians 
131 N. Hwy395 
Independencfi CA 93526 
619-878-2*126 
Fax 619-878-2311 

9.) Arthur Lopez, Interim Chainman 
Manchester/Point Arena Rancheria 
1351 Vineyard Court 
Santa Rosa, CA 95407 
707-527-2786 
Fax 707-882-4142 

10.) Marcel Simon, Chairman 
Middletown Rancheria 
22223 Hwy 29, Rancheria Road 
Middletown, CA 95461-0789 
707-987-3670 
Fax 707-987-0375 

11.) Donna Duckey, Chairperson 
The Big Pine Paiute Tribe 
841 S. Main Street 
Big Pine, CA 93513-0700 
619-938-2003 
Fax 619-938-2942 



5.) Attn: Chairman 

Fort Bidwell Indian Community 

Off Bridge Street 

Fort Bidwell, CA 96112 

916-279-6310 

Fax 916-279-2233 



12.) Lawrence Cantrell, Chairman 
Pit River Tribal Council 
20258 Tamarack Avenue 
Bumey, CA 96013 
916-335-5421 
Fax 916-335-5241 



6.) Daryl E. Burrows, Chairman 
Grindstone Rancheria 
County Rd 305 
Elk Creek, CA 95939-0063 
916-968-5365 
Fax 916-968-5366 



13.) Joseph Russ, Sr., President 
Round Valley Trit)e 
77826 Covelo Road 
Covelo, CA 95428 
707-983-6126 
Fax 707-983-6128 



7.) Carmen Ochoa, Chairperson 
Laytonville Rancheria 
301 Oak Drive 
Laytonville, CA 95454 
707-468-1336 
Fax 707-468-5615 



14.) Paula Lorenzo, Chairperson 
Rumsey Indian Rancheria 
14189 Winton Road 
Brooks, CA 95606-0018 
916-796-3400 
Fax 916-796-2143 



Page 16 



Attachment B Part 4 to Boswell Declaration 



0757 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 20 of 36 



15.) Clarence Atwell, Jr., Chairman 
Santa Rosa Rancheria 
16835 Alkali Drive 
Lemoore, CA 93245 
209-924-1278 
209-924-3583 

iS.) w. David wiurry, Si.;otiaiiTnaii 
Shingle Springs Rancheria 
5281 Honpie Road 
PLacerviile, CA 95667 
916-676-8010 
Fax 916-626-8033 



23.) Susie L. Long, Chairperson 
Yurok Tribe 
1034 6th Street 
Eureka, CA 95501 
707-444-0433 
Fax 707-444-0437 

24.) MaryannTViaiimrCiVeMiperison 
Augustine Indians 
1185 N. Hargrave Street 
Banning, CA 92220 
909-922-9727 



17.) Allen Summers, Chairman 
Bishop Indian Tribal Council 
50 Tusu Lane 
Bishop, CA 93514 
619-873-3584 ~ 
Fax 619-873-4143 



25.) John A. James, Chairman 
Cabazon Indians 
84-245 Indio Springs Drive 
Indio, CA 92201 
619-342-2593 
Fax 619-347-7880 



18.) Nicolas J. Padilla, Chairman 
Susanville Rancheria 
745 Joaquin Street 
Susanville, CA 96130 
916-257-6264 
Fax 916-257-7986 



26.) Michelle Salgado, Spokesperson 
Cahuilla Band of Mission Indians 
52701 Hwy 371 
Anza, CA 92539 
909-763-5549 



19.) Duane Garfield, Chairperson 
Tule River Tribe 
340 Indian Resen/ation Road 
Porterville, CA 93258 
209-781-4271 
Fax 209-781-4610 



27.) Ralph Goff, Chainnan 

Campo Band of Mission Indians 
36190 Church Road, Suite 1 
Campo, CA 91906 
619-478-9046 
Fax 619-478-5818 



20.) Donald McCovey, President 
Resighini Rancheria 
151 E. Klamath Beach Road 
Klamath, CA 95548 
707-482-2431 
Fax 707-482-3425 

21 .) Dale Risling, Chairman 
Hoopa Valley Tribe 
Hwy 96, Neighborhood Facility BIdg 
Hoopa, CA 95546-1348 
916-625-4211 
Fax 916-325-4594 



28.) Captain Grande Band of Diegueno 
Mission Indians 
Southern California Agency 
C/0 Nancy Rosales 
3600 Line St, Suite 722 
Riverside, CA 92501 

29.) Clifford M. Lachappa, Sr., Chairman 
Barona Indians (General Business) 
1 095 Barona Road 
Lakeside, CA 92040 
619-443-6612/6613 



22.) Josephine Leo, Vice-Chairperson 

Inaja & Cosmit Band of Mission Indians 
924 Main Street Apt 2 
Ramona, CA 92065 
619-789-8581 



30.) Marie Macarro, Spokesman 

Pechanga Band of Mission Indians 
12784PrechangsTD 
Temecula, CA 92593 
909-676-2768 Fax 909-699-6983 



Page 17 



Attachment B Part 4 to Boswell Declaration 



0758 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page21of36 



31 .) Janet Weeks, Chairperson 

La Jolla Band of Mission Indians 

Hwy76 

Pauma Vally, CA 92061 

619-742-3771 

Fax 619-742-1704 



39.) Robert Caiac, Chainman 

Ricon Band of Mission Indians 

1 W Tribal Road 

Valley Center. CA 92082 

619-749-1051 

Fax 619-749-8901 



32.) Gwendolyn Paroda, Chairperson 
(Frank Lachappa, Tribal Secretary) 
La Posta Band of Mission Indians 
1064 Barona Road 
Lakeside, CA 92040 
619-478-5239 



4Q.) Lynn R. L-Ro,,'C:vi.-;-'psrEc?n 

San Manuel Band of Mission Indians 
Indeon Service Road 
Highland, CA 92346 
909-864-8933 



33.) Carlos Guassac, Chairperson 

Mesa Grande Band of Mission Indians 
4040 30th Street #204 
San Diego, CA 92104 
619-282-9650 



41 .) Dorothy Tavul, Chairperson 
San Pasqual Band 
27458 N. Lake Wohlford Rd 
Valley Center, CA 92082 
619-749-3200 



34.) Mary Ann Andreas, Chairperson 
Morongo Band 
11581 PotreroRoad 
Banning, CA 92220 
909-849-4697 
Fax 909-849-4698 



42.) Anthony Largo, Spokesperson 
Santa Rosa Indians 325 N W Ave 
Hemet. CA 92343 
909-652-2570 



35.) Rotiert Smith, Chairman 
Pala Band of Mission Indians 
Pala Temecula Rd. BIdg 12 
Pala, CA 92059 
619-742-3784 
Fax 61 9-742-3785 



43.) David Dominquez, Chairperson 
Santa Ynez Band of Mission Indians 
Hwy246 

Santa Ynez, CA 93460-0517 
805-688-7997 
Fax 805-688-8005 



36.) Samuel J. Powvell, Chairman 
Pauma Band of Mission Indians 
Pauma Tribal Offices 
1010 Pauma Reservation Road 
Pauma Valley, CA 92061-0086 
629-742-1289 
Fax 61 9-742-3422 



44.) Ben Scerato, Chairman 

Santa Ysabel Band of Diequeno 
Sch House Canyon Rd off Hwy 79 
Santa Ysabel, CA 92070 
619-765-0846 
Fax 619-765-0320 



37.) Robert J. Salgado Sr., Chairman 
Soboba Band of Mission Indians 
23904 Soboba Road 
San Jacinto, CA 92583 
909-654-2765 
Fax 909-654-4198 



45.) Sandra Madrigal, Fiscal Officer 
Sherwood Valley Rancheria 
190 Sherwood Hill Dive 
Willits, CA 95490 
707-459-9690 
Fax 707-459-6936 



• 



38.) Mary E. Belardo, Chairperson 

Torres-Martinez Band of Mission Indians 

66-725 Martinez Road 

Thermal, CA 92274 

619-397-8144 

Fax 619-397-0300 Page 18 



46.) Thomas Brown, Chairman 

Elem Indian Colony of Porno Indians 
C/0 Central California Agency 
1824 Tribute Road, Suite J 
Sacramento, CA 95815 
916-566-7121 



Attachment B Part 4 to Boswell Declaration 



0759 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page22of36 



47.) Dean Mike, Chairperson 

Twenty-Nine Palms Band of Mission Indians 
46-200 Harrison Place 
Coachella, CA 92236 
619-775-5566 

Aa.) Anthony Pico, Gnarffinairr 
Viejas Tribal Council 
Route 1 Viejas Grade Road 
Alpine, CA 91901 
619-445-3810 
Fax 619-445-5337 



49.) Sandra Jefferson Yonge, Chairperson 
Lone Pine Paiute-Shoshone Tribe 
Lone Pine Reservation, CA 93545 
619-876-5658 - 



50.) Zandra Biets, Chairperson 
Tuolumne Me-Wuk Rancheria 
1 9595 Miwa Street 
Tuolumne, CA 95379 
209-928-3475 Fax 209-928-1677 

51.) RoselWlarie~Bane" Chairperson 
Benton Paiute Reservation 
Benton Station, NW Comer of Jet 
Hwy120 

Benton, CA 93512 
619-933-2321 
Fax 619-933-2412 

52.) San Luis Rey Indian Water Authority 
Hwy 76, Pauma Reservation Road 
Pauma Tribal Complex 
Pauma Valley, CA 92061 



Page 19 



Attachment B Part 4 to Boswell Declaration 



0760 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 23 of 36 



ALBUQUERQUE AREA (23) 



1.) Leonard Atole, President 
Jicarilla Apache Tribe 
Hwy 64 Hawks Dr 
Directly t j Tribal Offices 
Dulce. NM 87528 
505-759-3242 
Fax 505-759-3005 

2.) Wendall Chino, President 
Mescalero Apache Tribe 
101 Central Mescalero 
Mescalero. NM 88340-0176 
505-671-4495 
Fax 505-671-9191 



3.) Ronald Shutiva, Governor 
Pueblo of Acoma 
W. on 1-40, Exit 102. go S. across 
railrd. tracks, W. on Sky City Rd 
follow signs to Acoma Tribal BIdg 5 miles 
Acomita, NM 87304-0309 
505-552-6604 Fax 505-552-6600 

4.) Isaac Hennera, Governor 
Pueblo of Cochiti 
N. 1-25 Exit ©UBajada Hill, W. 
Hwy 16 (below Dam) go S. to Y. 
right @ Y. go left at Stop Sign to 
Yellow Tribal BIdg. 
Cochiti, NM 87072-0070 
505-465-2244 Fax 505-465-2245 

Alvino Lucero, Governor 
5.) Pueblo of Isleta 

Tribal Rd #40, BIdg 11 7A 
Isleta, NM 87022-1270 
505-869-31 1 1 Fax 505>^69-4236 



Paul Chinana, Governor 
6.) Pueblo of Jemez 

N.I-25 to Bernalillo, Exit to Hwy 44 

N. @San Ysidro on Hwy 4, Tribal 

BIdg (Lg) on L side going N.(pine 

trees) 

Jemez, NM 87024-0100 

505-834-7359 Fax 505-834-7331 



Page 20 



7.) Roland E Johnson, Governor 
Pueblo of Laguna - W 1-40 Exit 
1 14 (old 66)lefl @ Laguna Mart. 
- right g Y. use H. srtrgr.-z -f- 
Tribal BIdg 

Laguna. NM 87026-0194 
505-552-6654 Fax 505-552-6941 

8.) Tony B Vigil, Governor 
Pueblo of Nambe 
N. 1-25 to Hwy 285 past Pojoaque 
Gaming area to Traffic light, go R. 
on State Rd 503. 8 mi. to Tribal 
BIdg, Route. Box 11 7-B 
Santa Fe. NM 87501 „ 
505-455-2036 Fax 505-455-2038 

9.) Gerald Nailor. Governor 
Pueblo of Picuris 

Hwy 68. turn off @ Dixon Junct.75- 
15 mi., left @ 1st turn, office in 
middle of village 
Penasco, NM 87553-0127 
505-587-2519 Fax 505-587-1071 

Jacob Viarrial. Governor 
10.) Pueblo of Pojoaque 

N. 1-25 to Hwy 285 to the Tribal BIdg 

Route 11 Box 71 

Santa Fe NM 87501 

505-455-2278/79 

Fax 505-455-2950/3363 



Alex Lujan, Govemor 
11.) Pueblo of Sandia 

N. 1-25 to Tramway Blvd. S to Intersection of 
Tramway & Hwy 85, N. on Hwy 85 to Pueblo 
turn off - across tracks 
Bernalillo. NM 87004 
505-867-3317 Fax 505-867-9235 

Calvin Garcia, Govemor 
12.) Pueblo of San Felipe 

N. 1-25 Exit 252. go W. @ 4 way 

stop then go over railrd tracks, 

pass bridge, pavement ends @ Y 

go left passed church, Tribal bidg on S. side 

San Felipe, NM 87001 

505-867-3381 Fax 505-867-3383 



Attachment B Part 4 to Boswell Declaration 



0761 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 24 of 36 



1 3.) Elmer Torres, Governor 
Pueblo of San lldefonsio 
Hwy85,toHwy502W, 
6 mi Civic Center @ Y, go L. to church 
on W side/Tribal BIdg Route 5 
B0X315-A 
Santa Fe. N^ 8750i 
505-455-2273 Fax 505-455-7351 

14.) Joe Garcia, Govemor 
Pueblo of San Juan 
From Santa Fe to state Rd 74 going 
N.past post office to church.Tribal 
BIdg on right side of church 
San Juan Pueblo, NM 87566-1099 
505-852-4400/4210 Fax 505-852-4820 

1 5.) Ernest J. njian.Goveffrof 
Pueblo of Santa Ana 
2 Dove Rd 
Bernalillo, NM 87004 
505-867-3301 Fax 505-867-3395 



16.) Edwin Tafoya, Govemor 
Pueblo of Santa Clara 
Kee St in Espanola 
Espanola, NM 87532 
505-753-7326 
Fax 505-753-8988 

17.) Bennie Star, Govemor 
Pueblo of Santo Oomingo 
N. 1-25, Exit 259, go W across 
bridge, turn left. Tribal office in 
middle of village 
Santo Domingo, NM 87052-0099 
505-465-2214/15 FAx 505-465-2688 

18.) David Gomez, Govemor 
Pueblo of Taos 

N. Pueblo Rd, main Hwy 2 mi from 
Taos, Governors office on L side 
Taos.NM 87571-1846 
505-758-9593 
Fax 505-758-4604 



19.) Herman Vigil, Govemor 
Pueblo of Tesuque 
Hwy 285 Pass Carpet store & 
Casino, Left side of Rd, route 5 
Box 360-T/Santa Fe, NM 87501 
505-983-2657 Fax 505-982-2331 



r^^wxr-'—.^*-— ~7^ — ■ ■ 



20.) Stanley Pino, Govemor 
Pueblo of Zia 
135 Capital Square Dr 
Zia Pueblo, NM 87053-6013 
505-867-3304 
Fax 505-867-3308 



21.) Donald Eriacho, Govemor 
Pueblo of Zuni 
1203-B State Hwy 53 
Zuni, NM 87327-0339 
505-782-4481 
Fax 505-782-2700 

22.) Leonard C Burch, Chaimian 
Southern Ute Tribe 
116CapotiDr 
Ignacio. CO 81137-0737 
303-563-0100 
Fax 303-563-0396 

23.) Judy Knight-Frank, Chairperson 
Ute Mountain Ute Tribe 
N.Hwy 666 from Shiprock to Tribal 
office-Mike Wash Rd 
Towaoc, CO 81334 
970-565-3751 
Fax 970-565-7412 



Page 21 



Attachment B Part 4 to Boswell Declaration 



0762 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 25 of 36 



NAVAJO AREA (2) 



1 ) Dotprt? Apache, Chapter House 
President/Canoncito Chapter House 
W. on 1-40, Exit #131, 6 mi. North pass the 
water tank, Office is t)etween the 
water tank & BIA School 
Canoncito, NM 86026 
505-836-4221 

2.) Alt)ert Hale, President 
The Navajo Nation 
Hwy 264. Tribal Hill Drive 
Window Rock, AZ 86515 
520-871-6352 
Fax 520-871-4025 



Page 22 

Attachment B Part 4 to Boswell Declaration 0763 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 26 of 36 



PORTLAND AREA (43) 



1 .) Jack L Booth, Sr, Mayor 

Metlakatia Indian Community Council 
8th Upper Milton ST 
MetSiik^tlc, AK 99926 
907-886-4441 
Fax 907-886-7997 

2.) Sue Sahaffer, Chairwoman 

Cow Creek Bank of Umpqua Indians 
2400 Stewart Parkway, STE 300 
Roseburg. OR 97470-1563 
(541)672-9405 
Fax (541)673-0432 

3.) Mathew Dick, Jr.. Chaimian 
Colville Business Council 
Main SL Indian Agcy Campus 
Nespelem, WA 99155 
(509)634-4711 
Fax (509)634-4116 

4.) Warren Seyler. Chairman 
Spokane Business Council 
6208 Fort Wellpinlt Road 
Wellpinit, WA 99040 
(509)258-4581 
(509)838-3465 
Fax (509)258-9243 



8.) Hubert Markishtum, Chairman 
Makah Tribal Council 
Hwy112 

Ncai. .L;-.y7VwA 9835 / 
(360)645-2201 EXT36 
Fax (360)645-2323 

9.) Virginia Cross, Chairperson 
Muckleshoot Tribal Council 
39015 172nd Street SE 
Auburn. WA 98002 
(206)939-331 1 
Fax (206)939-531 1 

10.) Michael Stepetin, Chairman 
Nisqually Indians 
4820 She-Nah-Num Drive SE 
Olympia, WA 98503 
(360)456-5221 
Fax (360)407-0125 

11.) Joe Johnson, Chairman 

Nooksack Indian Tribal Council 
5048 Mt Baker Hwy 
Deming. WA 98244 
(360)592-5176 



5.) Glen Nenema. Chairman 
Kalispel Business Committee 
1981 NLeClericRoad 
Usk. WA 99180 
(509)445-1147 
Fax (509)445-1705 

6.) Melvin Youckton. Chairman 
Chehalis Business Council 
420 Howanut Road 
Oakviile.WA 98568 
(360)374-6582 
FAX(360)374-6549 

7.) Mary Leicka. Vice-Chairperson 
Hoh Tribal Business Council 
2464 Lower Hoh Road 
Forte, WA 98331 
(360)374-6582 
Fax (360)374-6549 



12.) Gerald J. Jones. Chairman 
Port Gamble S'Klallam Tribe 
31912 Little Boston Road NE 
Kingston, WA 98346 
(360)297-2646 
Fax (360)297-7097 

13.) Roleen Hargrove, Chairwoman 
Puyallup Tribal Council 
2002 E 28th Street 
Tacoma, WA 98404 
(206)597-6200 
Fax (206)848-7341 

14.) Douglas Woodruff. Sr.. Chairman 
Quileute Tribal Council 
River & Main 
Upush.WA 98350 
(360)374-6163 
Fax (360)374-6311 



Page 23 



Attachment B Part 4 to Boswell Declaration 



0764 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 27 of 36 



15.) Henry Cagey, Chairman 
Lummi Business Council 
2616 Kwina Road 
Beilingham, WA 98226 
(360)734-8180 
FAX(360)384-4737 

16.) Gorden James, Chainman 
Skokomish Tribal Council 
N 80 Tribal Center Rd 
Shetton, WA 98584 
(360)426-4232 
Fax (360)877-5148 

17.) David Lopeman, Chaimnan 
Squaxin Island Tribe 
SE 70, Squaxin Lane 
Shelton.WA 98584 
(360)426-9781 
FAX(360)426-3971 



18.) Robert Joe, Sr., Chairman 
Swinomish Tribal Committee 
950 Moorage Way 
Laconner, WA 98257 
(360)466-3163/5309 
Fax (360)466-4047 

19.) Stanley Jones, Sr., Chairman 
Tuiaiip Board of Directors 
6700 Totem Beach Road 
Marysville. WA 98270 
(360)653-4585 
Fax (360)653-0255/0278 



20.) Francis G. Charies, Chairperson 
Lower Eiv^a Community Council 
2851 Lower Elwha Road 
Port Angeles, WA 98362 
(360)452-8471 
Fax (360)452-4848 

21.) William R. Allen, Chairman/Exec 
Jamestown S'Klallam Tribal Council 
1033 Old BIynHwy 
Sequim, WA 98382 
(360)683-1109 
Fax (360)683-4366 
(360)681-4643 (Tim) 



22.) Peari Capoeman Bailer, Chairperson 
Quinault Business Committee 
l2i4Aaiis 
Taholah, WA 98587 
(360)276-8211 
Fax (360)276-4682 

23.) Hertjert "Ike" Whitish, Chainman 
Shoalwater Bay Tribal Council 
2373 Old Tokeland Hwy 
Tokeland, WA 98590 
(360)267-6766 
Fax (360)267-6778 

24.) John Bamett, Chairman 
Cowlitz Indian Tribe 
1417 15th Ave, #5 
PO Box 2547 
Longview, WA 98632 
(360)577-8140 
FAX(360)577-7432 

25.) Gail Greger, Chairman 

Stillaquamish Board of Directors 
3439 Stoluckquamish Lane 
Ariington,WA 98223 
(360)652-7362 
Fax (360)435-2204 

26.) Margaret Green, Chairperson 
Samish Tribe of Indians 
C/O Puget Sound Agency 
Federal Building 
3006 Colby Ave 
Everett, WA 98201-4080 
(360)258-2651 

27.) Lyie Emerson George, Chairman 
Suquamish Tribal Council 
15838 Sandy Hook Road 
Suquamish, WA 98392 
(360)598-3311 
Fax (360)598-4666 

28.) Arnold Libby, Chairman 
Kikiallus Tribe 
4500 E Division Street 
Mt Vernon, WA 98273 
(206)428-2690 



Page 24 



Attachment B Part 4 to Boswell Declaration 



0765 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 28 of 36 



29.) Tim Tarabochia, Chairman 
Chinook Indian Tribe Inc. 
HwylOl, Mi. Posts 
Old Chinook School BIdg 
Chinook. WA 98614 
(360)777-8303 
Fax (360)777-8100 

30.) Floyd Williams, Chairman 

Upper Skagit & Skagit Tribal Council 
2284 Community Plaza 
Sedro Wooley, WA 98284 
(360)856-5501 
Fax (360)856-3175 



31 .) Mark Mercier, Chairman 

Confederated Tribe of the Grand Ronde 
9615 Grand Ronde Road 
Grand Ronde, OR 97347 
(503)879-5211 
Fax (503)879-5964 



32.) Dolores Pigsley, Chairperson 
Siletz Tribal Council 
201 SE Swan 
Siletz, OR 97380 
(541)444-2513/2532 
Fax (541)444-2307 

33.) Donald Sampson, Chairman 
Umatilla Board of Trustees 
Old Mission Hwy 30 
Pendleton. OR 97801 
(541)276-3165 
Fax (541)276-3095 



34.) Bruce M. Brunoe. Sr., Chairman 
Confederated Tribes of Wamn Springs 
Reservation 
1233 Veterans Street 
Warm Springs, OR 97761 
(541)553-1161 
Fax (541)553-1924 



36.) Cecile Hansen, Chairperson 
Duwamish Tribe 
140 Rainier Ave S., Suite 7 
Ronton. WA 98055 
(206)^6;5185 
~ Fax^^)226-5240 



37.) Snohomish Tribe 

Attn: Tribal Accountant 
C/O Puget Sound Agency 
Federal Building 
3006 Colby Ave 
Everett, Wa 98201 
(360)258-2651 

38.) Marvin Garcia, Chairman 
Klamath General Council 
Hwy 97 

Williamson Business Parte 
Chiloquin. OR 97624 
(503)783-2219 1-800-524-9787 
Fax (503)783-2029 

39.) George Woriey, Chairman 

Northwestern Band of Shoshoni Indians 

31 W Bridge 

Blackfoot. ID 83221 

(208)785-7401 

Fax (208)785-2206 

40.) Samuel N. Penney. Chairman 
Nez Perce Tribal Exec. Committee 
Main Street & Beaver Grade 
Lapwai. Idaho 83540 
Attn: Barry Baker 208-873-7318 
(208)843-2253 
Fax (208)843-7354 

41.) Velma Bahe, Chairperson 
Kootenai Tribal Council 
County Road 38A 
Booners Ferry, ID 83805 
(208)267-3519 
Fax (208)267-2960 



35.) Oelbert Farmer, Chairman 
Fort Hall Business Council 
Pima Drive 
Fort Hall, ID 83203 
(208)238-3700 
Fax (208)237-0797 



42.) Joan Ortiz 

Stetlacoom Tribe D-208 
1515Layfayette 
Steilacoom, WA 98388 
206-584-6308 



Page 25 



Attachment B Part 4 to Boswell Declaration 



0766 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 29 of 36 



43.) Ernest Stensgar, Chairman 
Coeur D'Alene Tribal Council 
Route 1 Coeur D'Alene 
Tribal Administration Building 
Plummer, ID 83851 
(208)686-1800 
FaxG208)686-1182 



Page 26 



Attachment B Part 4 to Boswell Declaration 



0767 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 30 of 36 

EASTERN AREA (18) 



1 .) Joyce Dugan, Principal Chief 
Eastern Band of Cherokee Indians 
Sequoyah Trail 
Cherokee, NC 28719 
704-497-2771 
Fax 704-497-2952 



8.) Vernon Isaac, Chief 
Cayuga Nation 
44 W. Maine 
Gowanda, NY 14P70 
7Ttr3Jii-4847 
Fax 716-532-5417 



2.) Dennis Bowen, President 
Seneca Nation of Indians 
3582 Center Road - Piummer Bidg 
Salamanca, NY 14779 
716-532-4900 
Fax 716-532-9132 



9.) John Stevens, Tribal Governor 
Passamaquoddy Trit>e of Maine 
Indian Township Reservation 
Route 1 

Princeton, Maine 04668 
207-796-2301 
Fax 207-796-5256 



3.) James Biiiie, Chairman 
Seminole Trit)e of Florida 
6300 Steriing Rd 
Hollywood, FL 33024 
954-966-6300 
Fax 954-967-3486 



10.) Richard Hamilton, Tribal Govemor 
Penobscot Nation 
6 River Rd - Indian Island 
Old Town, Maine 04468 
207-827-7776 
Fax 207-827-6042 



4.) Leon Shenandoah, Sr, Head Chief 
Onondaga Nation 
RR1,Box270-A 
Nedrow, NY 13120 
315-469-8507 



11.) Clair Sabattis, Chief 

Houlton Band of Maliseet Indians 

Route 3, Box 450 

Bell Road 

Houlton, Maine 04370 

207-532-4273 

Fax 207-532-2660 



5.) Bemie Partner, Chief 

Tonawanda Band of Senecas 
7027 Meadvilie Rd 
Basom, f^ 14013 
716-542-4244 
Fax 716-542-9692 



12.) Richard A Haywart, Chairman 
Mashantucket Pequot Trit)e 
Indiantown Road 
Ledyard. CT 06339 
203-536-2681 
Fax 203-572-0421 



6.) Arnold Hewitt, Chief 
Tuscarora Nation 
5616 Walmore Rd 
Lewiston, NY 14092 
716-297-4990 



13.) Billy Cypress, Chairman 
Miccosukee Tribe 
Tamiami Trial (mile martter 70 US 
41) 

Miami, FL 33199 
305-223-8380 
Fax 305-223-1011 



7.) Raymond Haibritter. Nation Rep. 
Oneida Indian Nation of NY 
223 Genesee ST 
Oneida, NY 13421 
315-361-6300 
Fax 315-361-6333 



14.) Eddie Tullis, Chairman 

Poarch Band Creek & Eastern Creek Indians 

581 1 Jacksprings Rd 

Atmore, AL 36502 

205-368-9136 

Fax 205-368-4502 



Page 27 



Attachment B Part 4 to Boswell Declaration 



0768 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page31of36 



15.) Beverly Wright. Chairperson 

Wampanoag Tribal Council of Gay 

Head 

20 Black Brook Rd 

Gay Head. MA 02535 

508-645-9265 

Fax 508-645:3790 

16.) Ralph Darden. Chainnan 
Chitimacha Tribe 
1 55 Chitimacha Loop RD 
Charenton, LA 70526 
318-923-7215 
Fax 318-923-7791 



17.) Lovelin Poncho. Chairman 
Coushatta Tribe 
Powell Rd (3 mi N. of Elton) 
Elton. LA 70532 
318-584-2261 
Fax 318-584-2998 

18.) Phillip Martin. Tribal Chief 
Mississippi Band of Choctaw 
Indians 
Hwy16 

Philadelphia, Ml 39350 
601-656-5251 
Fax 601-656-1992 



Page 28 



Attachment B Part 4 to Boswell Declaration 



0769 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 32 of 36 



FIVE TRIBES (5) 



1 .) Jerry Meninick, Chairman 
Yakama Tribal Council 
401 Fort Road 
TopKsnish, WA 98S48 
509-865-5121 
Fax 50-865-5528 

2.) Michael T. Pablo, Chairman 
Confederated Salish & Kootenai 
Tribal Council 
Hwy 93, Tribal Complex 
Pablo, MT 59855 
406-675-2700 
Fax 406-675-2806 

3.) Chairman 

Assiniboine & Sioux of Ft. Peck 
Indian Reservation 
Ft. Peck Tribes 
605 Indian Ave 
Poplar, MT 59255 



4.) Russell Mason, Chairman 

Three Affiliated Tribes Business Council 
Tribal Administration BIdg 
-riV^y iiwv; riC 3, Box 2 
New Town, ND 58763 
701-627-4781/82 
Fax 701-627-3805 

5.) Fenell Secakuku. Chaimian 
Hopi Tribal Council 
Main Street Administration BIdg 
Kykotsmoni, A2 86039 
520-734-2441 
Fax 520-734-2435 



Page 29 



Attachment B Part 4 to Boswell Declaration 



0770 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 33 of 36 



Currently Non-Federaily Recognized 



1 .) Acting Chief-Francis Dunnagan 
ivtiaini Nation of Indiana 
80 W. 6th St. 
P. O. Box 41 
Peru, Indiana 46970 



Page 30 

Attachment B Part 4 to Boswell Declaration 0771 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page34of36 



Enclosure IV 



Attachment B Part 4 to Boswell Declaration 0772 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 35 of 36 



National Meeting 



Attachment B Part 4 to Boswell Declaration Q7-73 



Case 1:06-cv-01897-JR Document 26-10 Filed 08/11/2007 Page 36 of 36 



OFRCE OF TRUST FUNDS MANAGEMENT 
TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

Tribal Meetings Summary 

Albuquerque National ivieeung 

February 14-15,1996 Tribg? Representatives 

Aberdeen Arpa: Devils Lake, Oglala, Rosebud 6 1 6 

Standing Rock, Three Affiliated, Turtle Mountain 

AlbuQueraue Area: Acoma, Isleta, Laguna 6 1 1 

Jicarilla, Sandia, Taos 

Anadarko Area: Alabama-Couchatta, Absentee 16 32 ' 

Shawnee, Apache, Cheyenne-Arapaho, Citizen 

Band of Potawatomi, Comanche, Delaware of 

Oklahoma, Fort Sill, Iowa, Kiowa, KCA 

Committee, Pawnee, Ponca, Prairie Band 

of Potawatomi, Sac & Fox, Wichita 

Billinos Area: Arapahoe, Assiniboine Treaty 8 11 

Committee, Assiniboine & Sioux, Blackfeet, Gros 
Ventre, Chippewa Cree, Ft. Belknap, Shoshone 

Eastern Area: Chitimacha, Poarch Greek 2 2 

Juneau Area: Tlingit & Haida 1 1 

MinneaooKs Area: Bois Forte, Brotherton, Forest 8 1 1 

County Potawatomi, Grand Traverse, Keweenaw 
Bay, Lac du Flambeau, Onedia, St. Croix 

Muskogee Area: Cherokee, Chickasaw, Choctaw, 9 1 7 

Muscogee, Delaware, Osage, Quapaw, Seminole, 

Thiopthiocco 

Navaio Area: Navajo Nation 1 2 

Phpgnw Area: Chemehuevi, Ft. McDermitt, Hopi, 8 1 3 

Hualapai, Kaibab, San Carlos, Summit Lake, 
Tohono O'odham 

Portland Area: Colviite, Salish & Kootenai, 6 8 

Muckleshoot, Klamath, Shoshone-Bannock, 

Yakama 

SafiOHlfiaiSLAEea: Big Pine, Capitan Band, Hoopa, 8 13 
Resighini, Pit River, Santa Ysabei, Tula River, Yurok 

Total 79 137 



Attachment B Part 4 to Boswell Declaration 0774 



Case 1 :06-cv-01897-JR Document 26-1 1 Filed 08/1 1/2007 Page 1 of 35 



ATTACHMENT B 



TO BOSWELL 



DECLARATION 



PARTS 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 2 of 35 



Enclosure V 



Attachment B Part 5 to Boswell Declaration 

0775 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 3 of 35 



Regional Meetings 



Attachment B Part 5 to Boswell Declaration 

0776 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 4 of 35 



V 



OFFICE OF TRUST FUNDS MANAGEMENT 
TRIBAL TRUST FUNDS RECONCILIATION PROJECT 

Tribal Meetings Summary 



Sacramento Regional Meeting 
March 19-22, 1996 

Aberdeen Area : Turtle Mountain 

AlbuQueroue Area : Acoma Pueblo 

Phoenix /\ rea: Colorado River, Failon-Paiute, 
Hualapai, Kaibab, Pyramid Lake, Salt River, 
San Carlos, Summit Lake, Te-Moak, 
Northern Ute, Walker River, White Mountain 

Sacramento Area : Big Pine, Hoopa, Middleton, 
Morongo, Pala, Resighini, Round Valley, Yurok 

Total 



Tribes 


Representatives 


1 


6 


1 


2 


12 


24 



22 



26 



58 



Portland Regional Meeting 
April 9-11. 1996 

Anadarko Area : Fort Sill Apache, Kickapoo, 3 

Kiowa 

Juneau Area : Tlingit & Haida 1 

Minneapolis Area: Oneida of Wisconsin 1 

Portland Area: Colville, Coeur d'Alene, Grand 16 

Ronde, Hoh, Kalispel, Klamath/Modoc, Kootenai, 
Muckieshoot, Nez Perce, Puyallup, Quinauit, 
Skokomish, Spokane, Umatilla, Warm Springs, 
Yakama 

Total 21 



2 

5 

35 



49 



Attachment B Part 5 to Boswell Declaration 



0777 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 5 of 35 



Enclosure VI 



Attachment B Part 5 to Boswell Declaration 

0778 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 6 of 35 

RESOLUTION T-7».«« 

■ WHEREAS, the V«k«Bu ladiaa N>i;«i w . r-i •._ 
Bod "■ '•*'=™'J"'«n5aa«I Tribe pBrtBMt 10 the Trt«y of Jiwe9ih,lJS$ 02 Sub, HI), 

•uoa. lopp««h, W axhuspoa, bj thr .iitfaorit; ddc^ioi 1^ R«»»iiu««_T.3fcS«, «ad-._ . 

WHEREAS, the Y«l3aaTrihdCoB«a«eh.««!wki..t. ^^ . 

.-...^•Must a_9it«saa «ooiaa yaawja, Mi4 -■-■ 

KlfCREAS. the Budset aad riuBM <•— • 

BIA r«c«n&fis murauoiiu bud«*7^"** "* ^'■*""' '^'*^ CiwadI h« inrtietpatal ta wamNa 
t,.«auwi, BUQsct derdopmrst aad priurbr «^% »»i 



with (fac 



NOW.niEREPORE.BEITRESOLI'ED i«.,i. V. 

•ftheCo«f«Jer.«dTrib««ndB«d,S££tir',t?"Ir^^^ 

■pprore the folbm-ing poCer nMem«iu 7n/^ u. ^***' Toppowk, Wasfaiaem. witb a qwinta boas pmoubcrcbr 

d«M» Bukioc to the local lerefc PnonUa of the Yakuaa ladiaa Nalioa bas«d oa the priadpJeaf ««rnia« 

1. '^'»'''S*»io« "-«»««- wkiacbemuraedta the aS-CT/tribele^- 

i!,s"^oS^ '"" **"*• **""*^« "«' «rr««xi.t dbru b. «ld<d di«ctl, lo the aje-cy/tribe ff A 

mpeetire xm OflkL; *^°***'^."**^*^'''^ °°****^ **^ f aactioas be ab«,rbed bythe 

•nie Portland Am PUa be .ppn,T«I aad iapkneated; 

«dprioriu«^ ^"•'■'^''™«»n^»«o'S«««BlAprpcnimf«ad««rTicBkai«IoBk«ltribalB«i« 

** IJ-^^r^^'p^S^"*' "^ "» "^* '^^ C«rd Ofnce «id Ar« Office Tribl Sh.r«-» the 

BE rr FURTHER RESOUTD, that the YakM». i-^- v • . 

i»m«a«T- whether tjcpmsed or impGed br TwT-f .ZlL^**^ ^'^ "^ "^'^ "^^^ "" •«»»«'^^ ««i«i«k tkcir -ievereica 

•ctioa»»i»ichiaaraf»edir«ctJror«dir«lr>r^r^ 

DOJ^A.^DArao.th«md.,of»,.^.,^.,,^.,.^^^^^^.^^^,^^^^^^^^ 



5. 



ATTEST: J^ Meniai_, 

^kaau Trisal CeuadI 




^rv^x*--.^^-^ 




Ariea Wasblos, Stcrrtarr 
Yakama Tribal Coaoctl 



Attachment B Part 5 to Boswell Declaration 



0779 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 7 of 35 



Enclosure VII 



Attachment B Part 5 to Boswell Declaration 

0780 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 8 of 35 



Trilje Name 
Address 



Acknowledgement: 

reqaxx-ed by 

Sec. 304 (2) of P.L. 103-412 

(Please Return by April is, 1996) 

Confederated Salish & Kootenai Tribes 



PO Box 278 



Table iff 598S5 



Contuict 
Person 



Vern L. Cl airaont, Exec. Treasure r ^06 ) 675-2700 Ext 41 3 

(Name) (Telephone) 

The Itibe has reviewed the Agreed-Dpon Procedures and Findings Report resulting 
5r?'o^%J?. ^^l^^« ^^'^ Accounts Reconciliation Project for the 20-year period 
«^ iJ ?;« r^^«!^^ Smimary and Detail of Trust Funds Report for the 3 -year period 
of FY 1593, FY 1994 ^d FY 1995 provided by the Bureau of Indian Affairs by Letter 
Dated January IS, 1996 and provides the following attestation as required by the 
^cSoS^so? ^^'^ Management Reform Act of 1994, Public Law 103-412 

Complet e Aporonriate boxas SEE ATTACHMEHT "4" 

The Tribe requires additional time to review the report and .has no response 
for acceptance or dispute. 



The Secretary has provided the account holder with as full and complete 
accounting as possible of the account holder's funds to the earliest possible 
a|£^,<. and that the account holder accepts the balance of the followi?^ 
accounts as reconciled by the Secretary: 



The account holder disputes the balance of the account holder's account as 
reconciled by the Secretary as explained below: 

Account Number 



Balance $ 



As of Date 



Explanation of Disputed balance (Proyile cxpliimion «i «n «ticlm»em if foUowing space » insufficie^ 
dun one iccoum baiusce is disputed) 



D 



The Tribe requests an individual meeting with the BIA to discuss their 

a^S^^Z^f'^i^^f ■'^®^^^?^ °^ concerns regarding the Reconciliation Report at 
a Regional Meeting as indicated below. 

Uphoenix, March 19-22 Uportland, April 9-12 DTulsa. June 4-7 

LlNashville, Jon^ 18-21 LJAlbuoue/que, July 16-19 



Tribal Official b 




0781 



't^^ 



Sjifgnature - Titl^ hBDHDA R. SWAjliEY, 



Attachment B Part 4 to Boswell Declaration CH4IKWQM4N 




M/l 



■kc. 

Date 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 9 of 35 



Acknowledgmentof Tribal Trust Funds 
Reconcaiatwn Prcject 

The Confederated Safish and Kootenai tribes, upon review of the report 
resulting from the Tribal Tnjst Fund Accounts Recondliation Project for the 20 
year period of 1972 to 1992 and the Summary and Detail of Trust Funds report 

for the three year period of FY 1993, FY 1994 and FY 1995 provided by the 
Bureau of Indian Affairs by tetter dated January 15. 1996. hereby provides notice 

to the Bureau of Indian AffeiTB that we are not in agreement as to the proposed 
balances of our Tnist Fund Accounts held by the Bureau as Trustee. That said 
reports including proposed balance adjustments do not provide any sense of 
assurance of accuracy of the account balances and therefore are unacceptable to 
use as accunsite account balances. 

The reports foil to provide any such assurance due in part to the following: 

1. The Bureau of Indian Affairs' own acknowledgment that their present system 
was, is and continues to be unable to fiimlsh an accurate and full accounting 
of trust funds. 

2. The inability of the Bureau of verify that account balances as of 1 972 can be 
relied upon as accurate. 

3. The inability of the Bureau to verify that funds owed to the Tribes were ever 
collected, due to the lack of any accounts receivable system. 

4. The lack of an adequate archives and records keeping system which has 
resulted in a massh^e kiss of lease and contract records and the consequent 
inability to do acceptable audits and recondliations. 



Attachment B Part 5 to Boswell Declaration 



0782 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 10 of 35 



p Thft JRPk «f coordination between lunctions cf the we?al! t-;?*©?!! i^sgm?;!.^-^ 

with lease or contract initiation to collections, to receipting, to depositing, to 

investing and to advances to local status that results In the inability to 

determine the accuracy of any account t)alance on any given day as there 

have not been any systems in place to Insure that an postings and procedures 
are complete and aocurata 

6. The scope of the recondliatlon project did not, and probably never could. 

fumish any sense of accuracy of the Tribe's account balances, but instead 

pointed out one more time, the fact that the Bureau of Indian Affairs has been 

grossly negligent in if s tmst role of Tribal Trust Funds. 

Because of these and numerous other reasons, the Confederated Salish 
and Kootenai Tribes are not in agreement with the proposed balancga of our 
Trust Accounts as provided in the reconallation reports. 

We would therefore request that to resolve this issue a meeting of Tribal 
officials and appropriate Bureau of Indian Affairs and/or other Federal 
Government officials begin meetings to attempt a negotiated settlement to bring 
this most important issue to a dose. 



We await your response. 



Respectfully, 
confedSrated saush 




indaR. Swam 
rwoman 



NAt TRIBES 




Attachment B Part 5 to Boswell Declaration 



0783 



Case1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 11 of 35 



Enclosure Vm 



Attachment B Part 5 to Boswell Declaration 

0784 



Case1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 12 of 35 

VIZZ 

FORT PECK TRIBES 

Assiniboine & Sioux 

Statement of the 

AStoijaj-Lioine and Sioux Tribes 
of the Fort Peck Reservation 

April 30, 1996 

We appreciate this opportoonity to connaeiit on Port Peck's 
experience with the BIA' s trust funds reconciliation project. In 
our view, the trust funds reconciliation project has been a waste 
of time and resources. It is time for the reconciliation project 
to be terminated, and for the government to turn its attention to 
providing a real accotinting of trust assets. 

For many years now, the Fort Peck Tribes have expressed the 

view that every tribe and every individual Indian with a trust 

account is entitled to a full accounting of their trust assets. As 

trustee, the United States has a legal obligation to account for 

our trust funds. Congress reaffirmed this in the American TnHian 

Trust Fxind Management Reform Act of 1994, 25 U.S.C. 4001 et sea . 

The Trust Fund Reform Act requires the Secretary to account for the 

daily and euanual balance of all funds held in trust for tribes or 

Indians, to provide quarterly performance reports to all account. 

holders, amd to provide an annual audit of trust funds. These are 

essentially the minimal obligations of any trustee with respect to 

the manage men t of trust money. We support the full iit^slementation 

of the Trust Fund Reform Act, including its requirement of periodic 

statements and audits for account holders. 



Attachment B Part 5 to Boswell Declaration 

0785 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 13 of 35 



D 



While Congress has now clarified this longstanding obligation 
to account fox trust money, it has not yet provided an effective 
remedy for past taismanagement of trust funds by cne BIA. Congress 
has -- at the request of the Fort Peck Tribes and others -- 
provided that the statute of limitations will not run as to claims 
relating to trust fund management, until a full accounting is 
provided. This is important to assure that the passage of time 
does not limit our court remedies against the BIA for mismanagement 
of our funds. While this is important, it is still not enough to 
rotect our right to an accounting to make sure that we recover for 
past wrongs. Congressional action in tolling the statute of 
limitations prevents claims from being lost, but does net assure us 
that our claims are uncovered by means of an effective acco'Jinting. 

Over the past few years, the BIA has contracted with Arthur 

Anderson to xindertake the trust funds reconciliation project. As 

we see it, the reconciliation has served as little more than the 

BIA's excuse for not providing an accounting to tribes. By 

promoting the reconciliation as a large, ongoing project, the BIA 

has tried to deflect Congressional attention from the need to 

provide a meaningful accounting. Apparently, the BIA takes the 

view that as long as it is doing something regarding mismanagement 

of trust funds, that would suffice, cind Congress would not require 

more fundamental action. 

At Fort Peck, we have long warned that the reconciliation was 
not a usefxil project, as it was not designed to answer the question 

Attachment B Part 5 tp Boswell Declaration 

0786 



Case1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 14 of 35 



that needs answering -- particularly, how much money have the 
tribes and individual Indians lost as a result of the government's 
mismanagement of trust funds. The reconciliation was deigned 
merely to compare various records of the BIA against various other 
records of the BIA -- as though the issue was the consistency of 
the BIA's records, rather than the losses that the tribes may have 
suffered. By failing' to focus on the proper issues, the 
reconciliation became an exercise without a valid purpose. 

Throughout the reconciliation process, the Fort Peck Tribes 
expressed our concerns about the reconciliation, and we continued 
to stress the need for a full accounting. Our concerns have again 
bf^en shown to be warranted, by the recent report submitted by 
Arthur Anderson regarding the reconciliation project. 

The Arthur Anderson report is entitled "U.S. Department of the 
Interior, Bureau of Indian Affairs, Tribal Trust Funds 
Reconciliation Project, Five Tribes Fill the Gap/Special 
Procedures, Agreed-Upon Procedures and Findings Report for 
Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, 
July 1, 1972 through September 30, 1992." The only thing clear 
from the title of the report is that it is not an accounting. 
Throughout the report, Arthur Anderson stresses the limitations of 
their work. For example, the report states that "Phase I of the 
Reconciliation Project sxibstantiated that not all records would be 
available for a full accounting of such funds." Report, p. 1. In 

Attachment B Part 5 to Boswell Declaration 

3 0787 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 15 of 35 



other words, necessary records were not available for the 
reconciliation project. This lack of records severely undercut the 
project. 

Furthermore, the scope of the project was based, not on normal' 
audit or accounting procedures, but merely on "agreed-upon 
procedures. " These prqcedxires reflected not even Arthur Anderson' s 
standards, but only "the bureau's standard of reasonableness." 
Report, p.i. In other words, Arthur Anderson only did what the 
Bureau -- which mismanaged the trust funds in the first place -- 
told them to do, under procedures only the Bureau determined to be 
reasonable . 

Arthur Anderson included in the report a most remarkable 
disclaimer. They state: 

Because the above procedures do not constitute 
an audit made in accordance with generally 
accepted auditing standards, we do not express 
an opinion on any of the elements referred to 
above. Had we performed additional procedures 
or had we made am audit of the financial 
statements of the Trust Funds managed by the 
Bureau in accordance with generally accepted 
auditing standards, other matters might have 
come to our attention that would have been 
report:ed to you. In addition, this work was 



Attachment B Part 5 to Boswell Declaration 

4 



0788 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 16 of 35 



• 



more limited than would be necessary to 
express cm opinion on the Bureau's internal 
control structure taken as a whole and 
furthermore, would not necessarily disclose 
all material weaknesses in the structure. 
Accordingly, we are unable to, and do not, 
express an opinion on the internal control 
structure of the Bureau takn as a whole. 
Further, it is beyond our professional 
competence to provide advice regarding legal 
matters . Accordingly, we cannot and do not 
make any representations regarding any legal 
issues raised in conjunction with performing 
our procedures. 

Report pp. 5-6. Essentially, Arthur Anderson states that it did 
not use normal procedures on the reconciliation, that it can not 
issue any opinion even on the matters it looked at, that there may 
be problems it did not identify, that it can not comment on the 
BIA' s controls over trust money, and it can not comment on whether 
there were any breaches of legal duties. Clearly this is not a 
report that fulfills the government's trust responsibility, or even 
one that should be relied on for any purpose . 

The Bureau has been given more than a fair chance to produce 
something worthwhile from the reconciliation process . The Arthur 



Attachment B Part 5 to Boswell Declaration 

5 0789 



Case1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 17 of 35 



Anderson report, by its own terms, is worthless. It is time to end 
this wasteful process and end the reconciliation. 

There may be many approaches worth considering with respecc to 
providing tribes with a meaningful remedy regarding the 
mismanagement of trust funds. Tribes may have varying suggestions 
based on their particular circumstances. In our view, we would 
support federal funds being made available for tribes to retain 
their own accountants to examine specific trust funds issues and to 
provide the accounting that have so long been denied us. 

We look forward to worJcing with other tribes, and with the 

-Office of the Special Trustee, to find a remedy that makes us whole 

for the losses we suffered at the hands of the federal government. 



Attachment B Part 5 to Boswell Declaration 

6 

0790 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 18 of 35 



Enclosure IX 



Attachment B Part 5 to Boswell Declaration 

0791 



- -. :^. ii .. Lasb I .Ub-LV-U l o9/-J l i UulU I IIlMI^G n n i LU 00/11 / 2007 PagclOofOG 

Acknowledg'emezit: 

required by 

Sec. 304(2) of P.L. 103-412 

(Please Return by April 19, 1996) 



Tribe Kame 
Address 



Contact: 
Person 



— ( ) Ext 

(Name/Title) (Telephone) 

The Tribe has reviewed the Agreed-upon Procedures and Findings Report resulting 
r^o^*,^^^^^^ ^^'^ Accounts -Reconciliation Project for the 20-year period 
Zi H^lll Jf^^J^^ Smrmary and Detail of Trust Funds Report for the 3 -year period 
of FY 1993, FY 1994 and FY 1995 provided by the -Bureau of Indian Affairs by Letter 
Dated January 15, 1996 and provides the following attestation as required by the 
American Indian Trust Fund Management Reform Act of 1994, Public Law 103-412 
Section 304. 

Complete Appropriate boxes 

LJ The Tribe requires additional time to review the report and has no response 
for acceptance or dispute. 

LJ The Secretary has provided the account holder with as full and con^ilete 
accounting as possible of the account holder's funds to the earliest possible 
oate, and that the account holder accepts the balance of the followinq 
accounts as reconciled by the Secretary: 



The account holder disputes the balance of the account holder's account as 
reconciled by the Secretary as ea^lained below: 

Account Number Balance $ as of Date 

Explanation of Disputed balance (Provide expluuion is in atacfament if fbUowing spice is insufficiem or more 
Ihin one account baJance is dimmed) 



The Tribe requests an individual meeting with the BIA to discuss their 

tribal-specific questions or concerns regarding the Reconciliation Report at 
a Regional Meeting as indicated below. cpuiu <»t 

LJ Sacramento, March 19-22 Uportland, April 9-i2 DTulsa, June 4-7 

I — I Billings, June 18-21 LJ Albuquerque, July 16-19 

Tribal Official 

Signattire - Title ' 5^;^^ 



Attachment B Part 5 to Boswell Declaration 

07Q7 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 20 of 35 



Enclosure X 



Attachment B Part 5 to Boswell Declaration 

0793 



Case1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 21 of 35 



OFFICE OF TRUST FUNDS MANAGEMENT 
PAST RECONCILIATION PROJECT 

TRIBAL ATTESTATION ACKNOWLEDGEMENTS - AS OF MAY 3, 1996 





lillBi^HI^^HI^B^H 


IM3X 

OF 

MSKNOML 






=^=^U. 




ATTIKTATIONS 




MdHiMtf 
Am 


ASMIBIt 
■line* 


ri»mwwi 

AMooat 

IIIMICI 


mdMkMl 

JHmAw 




^^^m^^^^^^^^^^^^^^^^^^mmmm 






Devils Lake Sioux Tribe 
Fort Totten, North Dakota 


4-22-96 


X 






X 




Oglala Sioux Tribe 

Pine Ridge, South Dakota 


4-19-96 


X 










Ponca Tribe of Nebraska 
Niobrara, Nebraska 


4-18-96 


X 






^ — 




Standing Rock Sioux Tribe 
Fort Yates, North Dakota 


2-1-96 


X 






X 


# 


Three Affiliated Tribes of the Fort 
Berthold Reservation 
New Town, North Dakota 


2-1-96 


X 








Turtle Mountain Band of Chippewa 

Indians 

Belcourt, North Dakota 


4-16-96 






(•) 






Winnebago Tribe of Nebraska 
Winnebago, Nebraska 


4-19-96 


X 
























A12UQUERQIS ASEA 


liBiii^iiii 


mmmmmmmmm 


||g|*:|^|jp|<:;:|;;|:ii^^^^^ 






Pueblo of Acoma 
Acoma, New Mexico 


4-17-96 


X 










Pueblo of Jemez 

Jemez Pueblo. New Mexico 


4-24-96 


X 










Pueblo of Laguna 
Laguna, New Mexico 


4-22-96 


X 






X 




Pueblo of Santa Ana 
Bernalillo, New Mexico 


4-18-96 




X 








Taos Pueblo 
Taos, New Mexico 


4-10-96 


X 









Attachment B Part 5 to Boswell Declaration 



0794 



Case1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 22 of 35 



1 


OKK 

Of 
MKNWm 









7HI&B/ADDf^3 


ATTESTATWtiS 




JlitiWuiiit 

Tom 


JkecaoBt 


OHpWMt 
Accsont 


tmimui 


PuebSc Oi 2ja 

Zia Pueblo, New Mexico 


4-ie-as 


X 






1 

t 


Pueblo of Zuni 
1 Zuni, Mexico 


4-19-96 


X 






X 














1 anapahko aisa. 




iiiiiiiiiiiiiliiliiH 


Caddo Tribe of Oklahoma 
II Binger, Oklahoma 


4-18-96 


X 






X 


1 Cheyenne-Arapaho Tribes of Oklahoma 
1 Concho. Oklahoma 


4-18-96 


X 






X 


Delaware Tribe of Westem Oklahoma 
Anadarko, Oklahoma 


4-22-96 


X 






X 


KIckapoo Tribe of Kansas 
J[^Horton, Kansas 


4-19-96 


X 








Pkickapoo Tribe of Oklahoma 
II McLoud, Oklahoma 


3-19-96 


X 






X 


Kiowa Tribe of Oklahoma 
Carnegie, Oklahoma 


4-13-96 


X 








Pawnee Tribe of Oklahoma 
Pawnee, Oklahoma 


4-18-96 


X 






X 


Ponca Tribe of Oklahoma 
Ponca City, Oklahoma 


1-19-96 


X 






X 


Prairie Band of Potawatomi Indians of 

Kansas 

Mayetta^ Kansas 


2-16-96 








x.»« 


Wichita and Affiliated Tribes 
Anadarko, Oklahoma 


4-22-96 


X 




















SIlLINGSATi&A 


^^^^'^;^^^>^^^-;Ivl->>^^^^^^T^^x^ 


1 


Arapahoe Tribe • Wind River 
Reservation 
IHort Washakie, Wyoming 


4-18-96 


X 






X 



Attachment B Part 5 to Boswell Declaration 



0795 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 23 of 35 



• 



1 


SATE 1 
AGKNOMO, 








ATTeSTATfONS 






Aecaiait 

talmo* 


tttpOMd 

AHUUIlt 
■KlIKII 


twt»tiluK 


1 Assiniboine and Sioux Tnoss or the 
1 Fort Peck Indian Reservation 
Poplar, Montana 


2-7-96 
4-19-96 


X 




1 

A 


<l 


Biackfeet Tribe 
Browning, Montana 


4-19-96 


X 




X 




Chippewa Cree of the Rocky Boy 
Reservation 
1 Box Elder, Montana 


4-16-96 






(♦) 




j Crow Tribe 

Ij Crow Agency, Montana 


4-19-96 


X 






X 


Fort Belknap Community Council 
Harlem, Montana 


4-18-96 


X 








Shoshone Tribe - Win'd River 

Reservation 

Fort Washakie, Wyoming 


4-18-96 


X 






X 














1 EASTlRrf AftEA 


iiiiii^iii 


IB^^^^lll^llllllllllli^BH 


Coushatta Tribe 
Elton Louisiana 


4-18-96 


X 








Eastern Band of Cherokee Indians 
Cherokee, North Carolina 


4-23-96 


X 








Mississippi Band of Choctaws 
Philadelphia, Mississippi 


4-29-96 


X 








1 Passamaquoddy Tribe (Pleasant Point) 
Perry, Maine 


4-19-96 


X 








Penobscot Indian Nation 
Old Town, Maine 


4-19-96 


X 








Seneca Nation of Indians 
Salamanca, New York 


4-13-96 


X 








Saint Regis Mohawk Tribe 
Hogansburg, New York 


4-23-96 


X 








Wampanoag Tribe of Gay Head 
Gay Head, Massachusetts 


4-19-96 


X 









Attachment B Part 5 to Boswell Declaration 



0796 



Case1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 24 of 35 



ITUBE/ADDRESS 



SKTE 
MKNOWL 



-.lU^JcAti'.nHi:* 



Central Councii Tlingkit & Haida Indians 
Juneau, Alaska 



liiiiiiiiiiiiiii 



Bad River Band of Lake Superior 
Chippewa Indians 
Odanah, Wisconsin 



J 



Bois Forte Band of Chippewa 
Nett Lake, Minnesota 



Keweenaw Bay Indian Community 
Baraga, Michigan 



Lower Sioux Indian Community 
Morton, Minnesota 



Red Lake Band of Chippewa 
Red Lake, Minnesota 



liiiiiiiiiiiiiii 



Cherokee Nation of Oklahoma 
Tahlequah, Oklahoma 



Chickasaw Nation of Oklahoma 
Ada, Oklahoma 

Creek Nation of Oklahoma 
Olmulgee, Oklahoma 



Delaware Tribe of Eastern Oklahoma 
Bartlesville, Oklahoma 



Peoria Tribe of Oklahoma 
Miami, Oklahoma 



Osage Nation 
Pawhuska, Oklahoma 



4-9-96 



4-19-96 



4-8-96 



2-8-96 



4-19-96 



4-8-96 



2-8-96 



4-17-96 



4-19-96 



2-6-96 



4-22-96 



4-17-96 



A71C5TATKKVS 






Attachment B Part 5 to Boswell Declaration 



0797 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 25 of 35 



1 1 

THiBHADDRESS 


OArre 

AQKNOWt 








ATTESTATIONS 






AcEont 

■■Una* 


Aceoont 


: 


Scminoie fiation cf OKianoma 
Wewoka, Oklahoma 


1-26-96 


X 






X 


Seneca-Cayuga Tribe 
II Miami. Oklahoma 


4-30-96 


X 






X 


Wyandotte Tribe of Oklahoma 
Wyandotte, Oklahoma 


2-7-96 




X 


















1 NAVAJO AREA 
















1 PHOENIX AREA 


' 


1 Chemehuevi Indian Tribe 
1 Havasu Lake, California 


2-9-96 


X 






X 


I Hualapai Tribe 

II Peach Springs, Arizona 


2-8-96 


- X 








Kaibab Band of Paiute Indians 
1 Fredonia, Arizona 


1-30-96 


X 






X 


Paiute Indian Tribe of Utah 
Cedar City. Utah 


4-18-96 


X 






X 














PORTLAND AREA 


■^^■^■■■■■■■■■■^■■■l 


Coeur d'Alene Tribe 
Piummer, Idaho 


4-11-96 


X 








Confederated Salish & Kootenai Tribes 
of the Flathead Reservation 
Pablo, Montana 


4-18-96 






X 




Kalispel Tribe 
1 Usk. Washington 


4-25-96 


X 








Klamath & Modoc Tribes 
1 Chiloquin, Oregon 


2-12-96 


X 






X 



Attachment B Part 5 to Boswell Declaration 



0798 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 26 of 35 











-= 


ATTESTAIWHS 




tlo* 


Acemnt 


- Aecmmt^, 


sr 


Kootbrict Tube a1 taanu 
(1 Bonners Ferry, Idaho 


3-2S-96 


A 






X 


Muckieshoot Indian Tribe 
Auburn, Washington 


2-14-96 


X 








Northwestern Band of Shoshoni 
Blackfoot, Idaho 


4-19-96 


X 






X 


Quinault Tribe 
Taholah. Washington 


3-1-96 


X 






X 


Skokomish Indian Tribe 
Shelton, Washington 












4-9-96 


X 


1 Shoshone Bannock 
1 Fort Hall, Idaho 


4-22-96 


X 








1 Spokane Tribe of Indians 
Ij Wellpinit, Washington 


4-23-96 


X 








1 














1 Bishop Paiute Tribe (Owens Valley 

I Indians of Bishop Community) 

II Bishop, California 


4-18-96 


X 








1 Fort Bidwell Indian Community of 

Paiute Indians 
I Fort Bidwell, CaRfomia 


4-20-96 


X 


• 




• 


Hoopa Valley Tribe 
Hoopa, Calif omia 


4-19-96 


X 








Pit River Tribe 
1 Bumey, California 


4-19-96 


X 








ResighinI Rancheria ln(fians 
Klamath, California 


1-26-96 


X 








1 Round Valley Indian Tribes 
1 Coveio, California 


3-28-96 


X 








Soboba Band of Mission Indians 
^San Jacinto. California 


4-24-96 


X 









Attachment B Part 5 to Boswell Declaration 



0799 



Case1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 27 of 35 



liaBE/ADOAESS 



OKtt 

ftCKNOMCL 



Eureka, California 



* No direct communication from the 
tribes involved. The letter dated 4-16- 
96 was signed by an attorney on their 
behalf of Turtle Mountain Band of 
Chippewa and the Chippewa Cree of 
the Rocky Boy Reservation (also 
included the Little Shell Tribe of 
Chippewa Indians). For the purpose of 
this interim report these tribes were not 
counted in this report. 



ATTESTATKmS 



4-24-96 



Tml 




Total Respondents - 77 



69 



33 



Includes response from 30account holders who also requested additional time. 
**• Requested only meeting (3) 



Attachment B Part 5 to Boswell Declaration 



0800 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 28 of 35 



Enclosure XI 



Attachment B Part 5 to Boswell Declaration 

0801 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 29 of 35 



Account Holders Accepting Balances 



Attachment B Part 5 to Boswell Declaration QgQ2 



*«-(5ftsi^60gi(59Ol 897-JR esnDoBemient 26-1 1 j&^ (^l72(^ ' Page 30 of 35 

I Ae>an) vlmdffmmjft 

i see. 304(3) at P.L.\i03-4Xa 
(Fl*«s« &■ sura by April |i9. xs»c) 
of Sice af Trust ruotfc MAnB^vnwnc i 
S6S ltefs(u«ee* M.W.. aUitea leeq, AO^ftuquarvu*. 



P.CL- 



Tribe KciM 
Addr««B 



MM Bfl02 



ifi. 



^axr .SS>^^^ ^.,^ 



Yf¥' (</> 



. lil*iM/Tl6i^ ' I fralMhanc] / 



ceacaet 



7h« 9rikM ha« r«vl*wM 
Um Tribal Ta>at Fund 
3.* 13 and th« dUNiiMiry 
2>9a< FY Xt9K and FY 



Che Aw^oMtJ-Uftuti •^.wwMduraa knd rinainff* li*pare. raaulting cron 
heeeuntia R«caneil i«sloa Vrsjaee tor CIM ae->««r period ef 2 973- 
aad D«e»il aC TruBu Fwida llapert «br ch« S>-y««r period of ry 
If IS provided by on* Bur««u| o£ Indian Af Ceir* by b«et«r Dacad 
ilAnusry 1«, a»»« and |rovld«a th« follewijig sttftstaCivn *« r««uirad by t»i« Jwii«Tle«n 
Xndiaa Tru«c PuBd Punigainanc Roform Act of 19»*. Jffubtlc uw 103-413 Section 304. 



Cnwalaee APDrtrpy^^ti 



7 



The Tribe xaquli 

«ee«pcane«[ or 



Tk« fiaeratary 
•eeeunclng «* 
dace, and that 

aa raconciled 



Lnd 



I 



lozaft 



«c additional time to ravilewj cha report and ha« no raapanae far 
d Lapuea . 

. 1 

taa pzevidad tha aoeeunc lUl«|ar >4i.€ti as full and complete 
ptaaibla of tha afcoiuit holdc^'a funda to fcha aarlicat peaalbla 
I he account hoia«r aceapta thh bilanca of tha following account* 
b^ the Secretaryi ( 



The account 



»oenell«d toy tKa 9arr«eary «« Explained bal 



Accoimtf Mumber 



S^^An^Cian of Diaputad balance (rravia* aaplanattan •« «n ■«t*cni«i«nt \t laiiMtn^ «|>«c« 



ia intutXlataHi ar 



dtr disputes tha balance ajC the account holdar's account a« 



T^ 



Aalanea $. 



Aa of Data 



Mac* man ana aceaunt toa 



lanei l( Ai 



•autadl 



■t 



U tha Tribe i^qaoiti «n iAdivldual maatlhg wicjh tha 8ZA to diseuaa their tribal- 

apeciCic ouaatLona or conearna ragarding iha Kaeaneiliatien Report at a 
Hagional H^otirte aa indicated balew. 

t-JtaciraRianco. March 19-22 LJror&land, Apr|,l 9-12 LjTulaa. Jt^a A-t 

I / . • 

OBlUinga. Juia 11-21 ^D>2buquerqua..7uly KvlS 

Tribal offli 




0803 



toThl p. 02 



Attachment B Part 5 to Boswell Declaration 






Sme. 304 (2) a£ P.L, 103-^12 : 

TJiA/bAfM ^-^j^gyXnON, {»!•»■• lao^i^y April »,«»«>, . i 





Conocite 



fzam et» Tril»l tsn-c vund AiSounca T^aatHimzlaa f«»1-«V5*»' *^ 3-?II^ pSod 
of X»72-X»M and tbm SuBttazy «ad Saesil of Truac '««*• *^^jffr ™,?J[ ]»y Laccar 
of lY XS93. nr iSM aad rr ISSS prevldad by tha Buraau « 5^^*iJ^±S3r3: toy tbm 

Dacad January XS, 1S»C aad prevldaa tha foUowiaff •«=««5tS JS»l?e toTlS-^is 
jUBarlean Zadias Truat Fund if^^^jy^^n*- Safoxm Ace of X994, Pubj-^« *^ 
Saeeieo S04. 

SgmPlgM ATwypqggiate-bQxaa 

n Tba Triba reqairaa -^j^^^^-h — i tl8» to wriaw tJia rmposz aad baa so raapons* 
for aeeapeasiea or tfiapoea. 

Er^tha Sacratary has pzovldftd tba accorac hol dr wtch *• ft*^^. ond «»'^*^' 



daca, aad that tha aecamat holdar aeeapca tha balaaca or «» ^^>^ 
aeesuats aa t a eanct lad hy tha saeratazy: 

Mi 






a Tha accouat holdar dlaputaa tba balaaoo of cha aceouae bold«'a aceouat a. 
zweoBoilad by tha flaezatary aa axplaiaad baXo<r> 
jteconnt; Huabar •• Balasca * ^ ^ °*^ 



IxplaBatiaa of Oiaputad balaaea 9mU»m>uMiahitM 



MOBte 




D ma tnba raquaata aa iadividaal .aacSag tUth tba 1» to diaeuaa thalr 
triial-fpaclfic qaMClcai or eonsazsa ragardisff th« Um c cmHMm r ian laport «t 
a Sagioaal Maatiaff aa ladloatad balow. 

Dpboaalx, Mareb 13-22 Dsortlaad, April »-« DluLaa. Juaa 4-7 
dSoSS^fo. Jtoa 18-21 UAlbuqaarqua.JUly lf-l» 0804 
Tribal ^^^^^^^-1 fJyi^y^^ /ffp^'rO. /9rri^k /Jm. - ^^^^J 



Attachment B Part 4 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 32 of 35 



Enclosure XII 



0805 
Attachment B Part 5 to Boswell Declaration 



• Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page Saof^SS ' .7^ ^ 
Attachment B Part 4 to Boswell Declaration ^'^'^ -— -' ' -' >- - -i- 



r 



AcJmowl edgesaenZ 

reguix«d hy 

Sec. 304(2} of P.L. 103-412 

(Plsase Return by J^ril is, 199^) 



Tribe Kame 
Addreaa 



Contacc 
Person 



Blaclcfeet Indian Tribe 



P.O. Box 850 



Brovainfij MI 59417 



EloudLae C. Cobell 



i06. 



338-2??2__f2J£. 



(Kame) 



(Telepiiane) 



The Tribe has reviewed the Agreed-Opon 'roc.d^« p'^./cf^^'tl^'^O^yJ^'SrS 
from the Tribal Trust Fund Accounts ^f^^^'^ji^^^^^^jTi^^ort for the 3.year period 
• ori9^lS92 and the Summary and Detail ofJ^C T^^^^^fSiiS 5f aira by Letter 
of FY 1993. FY 1994 and FY 1995 Pjovided ^.^^^^^^t^taS^ ." required by th. 
Dated January is, 1996 and provides the ^^oj-^P^^^ »*;7"^:g; Public I-w 103-412 
American inAan Trust Fund Management Reform Act of 1994. fudx 

Section 304. 

f7, pinplet< - ApcTOPriate boxes 

The Tribe re,uire. additional time to revi.w the report and baa no response 

for acceptance or dispute. 

The secretary has provided rhe account holder with as full and co^lece 

accounting as possible of the account ^I'^f ^ ^^^^1^^= c%"'^'iV f^llotSg 
date, and that the accomt holder accepts the balance oi ^ 
accounts as reconciled by the Secretary: 



^ 



□ 



D 



The account holder disputes the balance of the accounr holder's accounc as 
reconciled by the Secretary as explained below: 

As of Date , 



Account Kufflber 



Balance $. 



Explanation of Disputed balance (Prcvui. cxpl.n,don ., » >n>c hn«m if feUowin, .ptce u iniuffuUm or more 
dun one teeount balinee U dicpued) ' 



D The Tribe r.<iuests an individual meeting wich the BIA to discuss their 

tribal-specific questions or concerns regarding the Reconciliation Report at 
a Regional Meeting as indicated below. 

D Phoenix. March 19-22 D Portland. April 9-12 DTulaa, June 4-7 



DNashvillo, June lfl-21 D Albuquerque , July 16-19 

Tribal Official.. .r^^^^^ OldPergon 

Si^hat;ire - Title Chaxrmm _____^ 



0806 

Da.te 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 34 of 35 . 

BLACKFEET NATION 

P.O. BOX 850 . ,u<>nxri>»>.uw> 



QSCt/nwe COMMITTEE 



is?^;ssr;;iss:s;:u« (406) 338-71 79 



BROWNING, MONTANA 59417 w«LotD««oN 



•ABEaMMT , BSCHETMY 



s:s.ou«.«Ti«Mw«« ■ pp^ 338-7530 z : :r~SS?35i; 



TOMTMOMKOH 
MttOMMT 

KMKftC BEAH WM-T^ 

-e»ttiU£BCQMMEu.r 



CBMOe nCKMO aiaMAM 
HOaSIIMMMCICMAMC 



Via Fax: (505)248-5741 
April 19, 1996 

Mr. Joe Christie 

Project Manager 

Office of Tmst Funds Management 

505 Marquette NW, Sxnte 1000 

Albuquerque, NM 87102 

Dear Mr. Christie: 

The Blackfeet Tribe requests additional time to review the account statements and Artimr 
Andersen rcpon. Furthermore, we do not agree with the account balances because of the 
Mure to perform or present critical data required to detcnabe acceptance. 

The Blackfeet Tribe submits the following concerns for your consideration: 

1) As you stated several times at the Narional meeting in Albuquerque, 
New Mexico this report and work is not an audit. You and your 
contractors have performed a reconstruction of the books and records. 
During this process 14% of the records for ""non-investment" 
transactions could not be located. Investment transactions were 
primarily excluded from this process. 

2) No efforts or work was perfonned on transactions or balances prior to 

1972. 

3) Certain procedures could not be performed from 1 972 through 1977, 
because revenue source codes were not maintained in the general 

■ ledger system. One item excluded from the report for this time period 

is the treasury interest recalculation. 

4) The reports are prepared on a cash basis and do not include what 

should have been earned or collected. The Bureau does not have an 
accounts receivable system to determine the appropriate balances. 



Attachment B Part 5 to Boswell Declaration 0807 



Case 1:06-cv-01897-JR Document 26-11 Filed 08/11/2007 Page 35 of 35 



5) The reports include interest at a stationaiy interest rate of4% or 5% 
rather than what may have been earned. The report do« notnidicate_ 
why investments earned less than Ac average rate other Aan. all „ _ . 
iavestments w^ at rat«s lower than the average." No raterest was 
paid on intertataccounts from 1972 tijiougb lyiw. _ 

6) The report does not mdude Tribal IIM accounts or Special Deposit 
accounts. These accounts are often used as dealing accounts to sort 
the collections by owner and should be included m the Tribal report 

7) No work was done to detennine if the MMS or BLM were collecting or 
managmg the trust resources to obtain maximum revenue and conserve 

the trust asset. Om you or your c o ntra ctors state that our Tribe 
recent all of the minerals revenue due us? 

Were the Timber assets managed appropriatdy? Were aiqr fimds from 
the 1 0% Bureau administration fee returned to the Bureau? 

8) Treasuo' (bank) was not recondled to the general ledger except for 

1992. The Treasury camiot report the Bureau's cash balance. 
Therefore, the recondliation must be performed on an annual baas 
using transactions pasted by the Treasury compared to postings by the 
Bureau. 

In summary, these are our primary concerns. After we have reviewed the reports in 
greater detdl, we will forward additional questions. If you have any questions, please 
contact Elouise C. Cobdi at (406) 338-2992. 

Sincerely, 




Eari Old Person 

Blackfeet Tribal Business Coundl 



Attachment B Part 5 to Boswell Declaration ^^^j. 



Case 1:06-cv-01897-JR Document 26-12 Filed 08/11/2007 Page 1 of 19 



ATTACHMENT C 



TO BOSWELL 



DECLARATION 



PARTI 




Case 1:06-cv-01897-JR Document 26-12 Filed 08/11/2007 Page 2 of 19 



TrtE sec?5e;tapy o~ the interior 

WASHINGTON 

DEC 1 1 1996 

Honorable John McCain 

Chairman, Committee on Indian Affairs 

United States Senate 

Washington, D.C. 20510 

Dear Mr. Chairman: 

I am pleased to transnut to Congress the Department of the Interior's Proposed Legislative 
Options in Response to the Tribal Trust Fund Reconciliation Projea Results. This submission is 
made as required by Seaion 304 of the Indian Trust Funds Management Reform Act of 1994 (25 
U.S.C. § 4044), which provides that the Secretary shall outline efforts he will undertake to 
resolve disputed Tribal trust fund account balances. 

This report marks a milestone in the Federal Government's efforts to address longstanding 
inadequacies in the management of Tribal trust accounts. Having completed a five-year study of 
Tribal account transaaions for the period 1972-1992, we now mm to the task of working in 
collaboration with Congress and the Tribes to address what to do about our findings. As our 
report indicates, we believe a legislative settlement is the most effective, expeditious, economical 
and equitable way to go. While this report begins to define our views on what form that 
legislation might take, we have more work to do. We will be consulting with Tribes in the 
weeks to come to solicit their views on various settlement options, particularly with respect to 
claims based on the unreconciled transactions and claims that may arise outside the time period 
and scope of the 20-year reconciliation period. We plan to submit our final recommendations in 
April 1997. 

The issues that Congress, the Tribes and the Administration must confront in constructing a 
settlement are not easy; there are no clear answers. Our overriding objective for this settlement 
process must be to achieve fairness, recognizing the limitations of what has occurred in the past. 
Our efforts must be principled and undertaken in good faith, paying those to whom money is 
owed with due regard to our fiduciary obligation, while protecting the taxpayers where little or 
no reasonable likelihood of actual loss exists. 

The Office of Management and Budget advises that there is no objection to the presentation of 
this report from the standpoint of the Adminiso-ation's program. ~ " 

We look forward to \yorking with you in developing this settlement proposal. An identical letter 
is being sent to Congressman Don Young. 

Sincere! 




cc: Honorable Daniel Inouye, Ranking Minority Member 
Honorable Ben Nighthorse Campbell, Chairman-elea 



0546 
Attachment C Part 1 to Boswell Declaration 




Case 1:06-cv-01897-JR Document 26-12 Filed 08/11/2007 Page3of19 



THE 5=:Ci=!ETARY O" THE INTESlQP 
WASHINGTON 

DEC I I 1996 

Honorable Don Young 
Chairman, Committee on Resources 
House of Representatives 
Washington, D.C. 20515 

Dear Mr. Chairman: 

I am pleased to transmit to Congress the Department of the Interior's Proposed Legislative 
Options in Response to the Tribal Trust Fund Reconciliation Projea Results. This submission is 
made as required by Section 304 of the Indian Trust Funds Management Reform Act of 1994 (25 
U.S.C. § 4044), which provides that the Secretary shall outline efforts he will undertake to 
resolve disputed Tribal trust fund account balances. 

This report marks a milestone in the Federal Goverrunent's efforts to address longstanding 
inadequacies in the management of Tribal trust accounts. Having completed a five-year study of 
Tribal account transaCTions for the period 1972-1992, we now turn to the task of working in 
collaboration with Congress and the Tribes to address what to do about our findings. As our 
repon indicates, we believe a legislative settlement is the most effeaive, expeditious, economical 
and equitable way to go. While this report begins to define our views on what form that 
legislation might take, we have more work to do. We will be consulting with Tribes in the 
weeks to come to solicit their views on various settlement options, particularly with respect to 
claims based on the unreconciled transactions and claims that may arise outside the time period 
and scope of the 20-year reconciliadon period. We plan to submit our final recommendations in 
April 1997. 

The issues that Congress, the Tribes and the Administration must confront in construaing a 
settlement are not easy; there are no clear answers. Our overriding objective for this settlement 
process must be to achieve fairness, recognizing the limitations of what has occurred in the past. 
Our efforts must be principled and undertaken in good faith, paying those to whom money is 
owed with due regard to our fiduciary obligation, while protecting the taxpayers where little or 
no reasonable likelihood of actual loss exists. 

The Office of Management and Budget advises that there is no objection to the presentation of 
this repon from the standpoint of the Administration's program. 

We look forward to working with you in developing this settlement proposal. An identical letter 
is being sent to Senator John McCain. 

Sincerely, 




cc: Honorable George Miller, Ranking Minority Member 



Attachment C Part 1 to Boswell Declaration 0547 



Case 1:06-cv-01897-JR Document 26-12 Filed 08/11/2007 Page 4 of 19 



United States Department of the Interior 

OFFICE OF THE SECRETARY 
U.islum;K.ii. DC. I'n-.MO 




Dear Tribal Leader: 



DEC I t 1996 



Enclosed you will find a document encitled "Proposed Legislative Options in Response to Tribal Trust Fund 
Reconciliation Project Results" (Options Paper),, which the Depanment submined to the U.S. Congress 
today. The Department prepared the Options Paper in response to Section 304 of the American Indian 
Trust Fund Management Reform Act of 1994, which directs the Secretary of the Interior to provide 
Congress with a report describing the Tribal trust fund reconciliation and a statement outlining effons the 
Secretary will undertake to resolve disputes regarding Tribal trust fund account balances arising from the 
reconciliation. 

Considering the number of disputed account balances, the high cost of litigation, and our desire to resolve 
any disputes efficiently and fairly, we believe that a legislative resolution of tribal trust fund disputes is in 
the best interest of all panies. The Options Paper proposes specific approaches to correct accounts where 
the reconciliation project identified specific errors. For other claims, namely, claims arising from . 
unreconciled transactions (transactions where BIA could not locate supporting documentation in the 
reconciliation) and claims outside the scope and time frame of the project, the Options Paper discusses 
concepts for possible resolution, but does not make any specific recommendations. For these claims, we 
seek the Tribes' ideas before we make any proposals to Congress about how to resolve them. 

Because of the complexity of the problem and potential solutions, as well as the potential impact that any 
proposed solutions may have on the Tribes, we are providing the Options Paper to all Tribes, not only 
Tribes that have been identified as Trust Account Holders. The Executive Summary provides a good 
overview of the issues, but we ask that you carefully review the entire Paper. We ask that you provide us 
with your comments on the concepts discussed in the Options Paper and tiie anachment, which contains the 
Special Trustee's Advisory Board's proposals, as well as any other ideas you may have for resolving all 
disputes involving Tribal trust fund account balances. Please submit three copies of your written 
comments to: Tribal Trust Fund Comments. U.S. Depanment of the Interior, Bureau of Indian Affairs, 
Public Information Office, Attn: Ralph Gonzales, Room 4546, M.S. MIB-4542, 1849 C Street, N.W., 
Washington, DC. 20240, on or before February 12, 1996. 

We also will be convening three regional consultation meetings in the coming month, in Portland, OR; 
Phoenix. AZ; and Denver, CO. to obtain Tribal input on resolution of Tribal trust fund claims. In 
addition, we will convene a meeting in Washington, D.C., to provide a further oppominity to consdt with 
you. We will provide additional information on these consultation meetings as soon as it becomes 
available. 

The Depanment wants to develop an overall solution that will resolve Tribal trust fund disputes fairly and 
efficiently. Your panicipation in this consultation process is vital to achieving that end. We will review 
and consider your comments in the process of developing more specific recommendations, and intend to 
submit them in a follow-up report to Congress in April 1997. Your participation is greatly appreciated. 



Sincerely, 



Ada E. Deer 

Assistant Secretary - Indian Affairs 

Attachment C Part 1 to Boswell Declaration 0548 



Case 1:06-cv-01897-JR Document 26-12 Filed 08/11/2007 Page 5 of 19 




U.S. DEPARXMENX OF THE INTERIOR 



OFFICE OF THE SECRETARY 

FOR IMMEDIATE RELEASE 

December II, 1996 



Contact Thomas W. Sweeney (202) 219-4150 
Stephanie Hanna (202) 208-3171 



INTERIOR DEPARTMENT RECOMMENDS LEGISLATIVE OPTIONS 
TO RESOLVE TRIBAL TRUST FUND BALANCE DISPUTES 

The Department of the Interior has presented to Congress an initial report that outlines proposed 
legislative settlement options for resolving disputed balances in Tribal trust accounts. The report and 
recommendations are in response to a five-year study by a national accounting firm which examined 
billions of dollars in Tribal trust funds transactions handled by the Bureau of Indian AiTairs for a 20-year 
period beginning in 1972. 

"We are committed to resolving these issues in a manner that is fair to the Tribes and fair to the public, 
and that does justice," said Secretary of the Interior Bruce Babbitt. "Where the government has been 
found to owe money, we will pay it, with interest." 

Where the BIA was found to have made errors to the detriment of a Tribe, the Department proposes that 
funds be restored to the Tribe, with interest. Where a Tribe may owe the government money after netting 
all errors relating to that Tribe's account, the amount would be forgiven. For claims where a Tribe 
disputes a transaction based on the Tribe's own documentation, or for claims where a Tribe disputes the 
BIA's documentation used to reconcile a transaction, those claims would be addressed through mediation. 

The overriding objective of these proposed legislative settlement options is to achieve fairness and justice 
with respect to Tribal tnist account balances. The Interior Department was guided by the following 
objectives in formulating its legislative proposals: 

• achieve a settlement that is fair 

• achieve the most resource-efficient settlement of claims (in terms of conserving federal 
government and Tribal time, money, and staff, including attorneys' and expert witness 
fees) 

• encourage settlement by providing incentives to settle and by providing disincentives to 
litigation 



-more- 



Attachnnent C Part 1 to Boswell Declaration 



r\KAQ 



Case 1:06-cv-01897-JR Document 26-12 Filed 08/11/2007 Page 6 of 19 



use the most informal settlement processes available rather than litigation to encourage 
Trib'al panicipation 

obtain funding for the settlement without reducing appropriations for the BIA budget and 
Tribal programs 



e 



achieve final agreement on account balances through September 30, 1995 as required in 
the Act, as an agreed-upon starting point for the future 



The study, which was completed in 1995 and undertaken for the BIA and by the national accounting firm 
Anhur Andersen, LLP, determined that 86 percent - or $15.3 billion - of the $17.7 billion the BIA 
handled in Tribal trust funds non-investment transactions from July 1972 to September 1992 could be 
reconciled, i.e., supporting documents could be located. Of the reconciled transactions, Arthur Andersen 
detected an error rate of only .01 Vo. Other components of the project assessed the accuracy of other 
transactions, the reasonableness of investments, and the propriety of income collected. Overall, slightly 
less than half of the errors detected were to the detriment of the Tribes and the balance were to the 
benefit of the Tribes. 

There were also transactions in the amount of $2.4 billion that could not be reconciled, meaning that 
during the course.of the study, the BIA was not able to locate documentation to support the accuracy of 
the transaction as reflected in the BIA's books (known as the general ledger). The report indicates that 
with respect to three quarters of this amount, there is relatively little risk that a Tribe did not have use 
of its own money (although the funds conceivably could have been credited to the wrong account of that 
Tribe). As a result, settlement options with regard to the unreconciled transactions will focus on the 
remaining $575 million in transactions. Options to address these transactions, as well as any other claims 
that Tribes may have involving transactions outside the scope of the 20-year study, will be the focus of 
consultation efforts by the Department with the Tribes. 

The Interior Department report was submitted by Secretary Babbitt to the Senate Committee on Indian 
Affairs and the House Committee on Natural Resources. The Department will be consulting with Tribes 
on the options contained in the report, including meetings in January in Portland, Oregon; Denver, 
Colorado; Phoenix, Arizona; and Washington, DC. It will submit further proposals to Congress for 
settling Tribal trust fund account balances in April 1997. In addition, early next spring, the Special 
Trustee, appointed by the President to reform the Department's trust funds management systems, will 
submit his strategic plan to the Secretary and Congress for bringing the trust accounting and management 
functions up to industry standards. 



-DOI- 



News rclcu;es may be downloa<i«l from the [X)l Homepage at IHRL hnpt//ww«r.iiics.(ovMoi/Ma 



Attachment C Part 1 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-12 Filed 08/11/2007 Page 7 of 19 



m- 



PROPOSED LEGISLATIVT OPTIONS IN RESPONSE TO 
TRIBAi TRUST FUND RECONCILIATION PROJECT RESULTS 

L EXECUTIVE SUMMARY 

For more than a century, the federal government has been the trustee of 
fiinds for Indian Tribes and individual Indians. Currently, the Secretary of the 
Interior, through the Office of the Special Trustee (OST), maintains approximately 
1,500 accounts for 280 Tribes with assets in excess of $2.5 billion. Each year 
more than $802 million passes through the Tribal trust funds system. In addition' 
the Secretary, through the OST, maintains over 300,000 individual Indian money 
(IIM) trust fund accounts with a current balance of $450 million. Each year, $300 
million passes through the IIM system. ' . 

Concerns have been expressed for a number of years in Indian country, 
various quarters of the Executive branch, the General Accounting Office and 
Congress that the trust funds management and accounting systems have not kept 
pace with technological developments in the private sector. Questions have been 
raised about whether assets were being properly managed and funds accounted for. 
There have been calls for accountings of both Tribal and IIM funds and for 
additional investment by the federal government to upgrade its systems. 

In response to these concerns and the direction of Congress, the Department 
contracted with Arthur Andersen, LLP to perform a reconciliation of the Tribal 
trust fund accounts. The five-year project covered transactions for the twenty- 
year period from 1972 to 1992, and cost $21 million to complete. The objective 
of the project was to reconstruct tribal accounts to the extent possible, to provide 
some assurance of the accuracy of transactions, reasonableness of investment 
earnings, and propriety of income collected. The results of the reconciliation 
project and the Department's approach to developing a settlement of disputed 
account balances are described in more detail below. In brief, the basic 
reconciliation portion of the project examined $17.7 billion in non-investment 
transactions, of which $15.3 billion ~ about 86 percent ~ were reconciled. For 
the reconciled transactions, approximately $1.87 million in transactions were in 
error ~ an error rate of .01 percent. 

The remaining 14 percent of transactions ~ amounting to $2.4 billion - 



Attachment C Part 1 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-12 Filed 08/11/2007 Page8of19 



were deemed by Arthur Andersen to be "unreconciled," meaning that the Office 
of Trust Funds Management (OTFM) was unable to locate source documents to 
verify the accuracy of the general ledger entry for the transactions. For example, 
the general ledger might list a receipt of SI, 000 to a Tribal account in corineccion 
with a mineral lease of trust property; however the underlying documentation 
necessary to verify its accuracy could not be located with the time and resources 
available. While this does not mean that the S2.4 billion is lost or missing, it does 
mean that the poor condition of the records and systems did not allow the federal 
government to conduct an audit or provide the level of assurance to account 
holders that should be expected. 

In addition, almost half of the unreconciled S2.4 billion related to 
transactions involving receipt of funds by the government on behalf of a Tribal 
account from third parties. An additional half billion dollars of unreconciled 
transactions involved transfers between different accounts of the same Tribe. With 
respect to these two categories of transactions, where the receipts or transfers to 
a particular Tribe's accounts were posted to the general ledger, it is likely that the 
Tribe had use of the funds even if it they were posted to the wrong account of that 
Tribe. Deducting these amounts from the $2.4 billion in unreconciled transactions, 
and based on other supplemental data, we believe the legislative settlement options 
to address unreconciled transactions should focus on the remaining S575.1 million 
(excluding interest). 

This report reflects a milestone in the federal government's efforts to address 
these longstanding inadequacies. As described more fully below, the report 
contains our preliminary proposals for settling the disputed balances in the Tribal 
trust fund accounts based on the results of the five-year, $21 million reconciliation 
project. These concepts are provided in accord with the American Indian Trust 
Fund Management Reform Act of 1994, which provides that the Secretary shall 
outline efforts he will undertake to resolve disputed Tribal trust fund account 
balances. In addition, pursuant to the Act, the Special Trustee is making 
recommendations to implement improvements to trust management policies, 
practices, procedures and systems Department-wide. Some reforms already have 
been instituted, including conversion to a core trust accounting and investment 
system for tribal funds, publication of standardized procedures for the management 
of IIM accounting operations and reconciling all cash activity on, a daily basis for 
both Tribal and IIM accounts. OTFM has published regulations providing 
procedures for Tribes to withdraw and manage their own funds should they so 



Attachment C Part 1 to Boswell Declaration ^^^^ 



Case 1:06-cv-01897-JR Document 26-12 Filed 08/11/2007 Page 9 of 19 



choose. Between 1990 and the present, staffing of the OTFM has been increased 
five fold. Finally, the Administration has included in its budgets for 1996 and 
1997. and will include in the out>'ears, funding to implement trust reform efforts. 

V/e believe that legislation ultimately will be required to provide a settlement 
that will be fair to account holders. This repon contains the Depanment's specific 
recommendations for addressing claims based on transactions where documentation 
indicates that errors were made. We refer to these as "Type I claims," and we 
recommend that where errors occurred to the detriment of Tribes, the government 
reimburse the account with simple interest computed at the Tribal benchmark rate. 
With respect to the Type 1 claims where errors inured to the benefit of the Tribe, 
the Department recommends netting those amounts against any amounts owed to 
the Tribe, and forgiving any remaining amount owed by the Tribe after netting is 
applied. 

Where Tribes have additional documents to contest their account balance-(we 
refer to these as "Type 2 claims"), we recommend diat Tribes have an opportunity 
to present those claims to the Department. In the event the Department disagrees 
with the Tribe's position, the Tribe may request that the matter be submitted to a 
mediator who would be empowered to recommend a resolution of the claim. 

There are two additional types of claims for which consultation with Tribes 
is necessary before we can develop any settlement recommendations. First, there 
are claims based on the $2.4 billion of unreconciled transactions, which we refer 
to as "Type 3 claims." Although we may be able to locate some documents, it is 
not possible to determine whether the Tribes suffered money losses as a result of 
the Bureau of Indian Affair's (BIA) management and accounting practices. We 
believe that resolution of these questions by litigation would be time-consuming, 
expensive and not in the interest of eirher the government or the Tribes! 
Accordingly, we are soliciting Tribal input on how best to address these claims in 
settlement. 

Second, some Tribal representatives assert that they are entitled to some 
form of redress for management and accounting practices involving transactions 
outside the scope and duration of the 20-year smdy. They argue that they will be 
unable to agree on a final account balance unless these issues are addressed in the 
settlement process. 



Attachment C Part 1 to Boswell Declaration 



Case1:06-cv-01897-JR Document 26-12 Filed 08/11/2007 Page 10 of 19 



The repon outlines several possible "rotal" settlement options as a point of 
departure for our funher discussions on these broader claims and the Type 3 
claims. While the government does not endorse any of these specific proposals - 
and those described in this report by no means constimte all of the possible 
approaches - we nonetheless would like to consider Tribal views with respect to 
these and other proposals. 

Our overriding objective for this settlement process is to achieve fairness and 
justice with respect to Tribal trust account balances. We are committed to doing 
the best job we can, recognizing the limitations of what has occurred in the pas't 
and the available information, to restore funds to Tribal trust accounts that have 
suffered losses as a result of inadequacies in the Depanment's management and 
accounting systems. The effort must be principled and undertaken in good faith, 
paying those to whom money is owed, with due regard to fiduciary obligations' 
while, at the same time, protecting the public fisc where little or no reasonable 
likelihood of loss exists. 

We considered the following objectives in formulating the proposals and 
options for the proposed legislation: 

• achieve a settlement that is fair 

• achieve the most resource-efficient settlement of claims (in terms of 
conserving federal government and Tribal time, money, and staff, 
including attorneys' and expert witness fees) 

• encourage settlement by providing incentives to settle and by 
providing disincentives to litigation 

• use the most informal settlement processes available rather than 
litigation to encourage Tribal participation 

• obtain funding for the settlement without reducing appropriations for 
the BIA budget and Tribal programs 

• achieve final agreement on account balances through September 30, 
1995, as required in the Act, as an agreed-upon starting point for the 
future 



Attachment C Part 1 to Boswell Declaration 0554 



Case1:06-cv-01897-JR Document 26-12 Filed 08/11/2007 Page11of19 

When the consultation process is complete, the Department will submit a 
fmal set of recommendations to Congress. Funding sources also will need to be 
identified. In order to provide time for consultation with Tribes, we plan to 
submit those recommendations to Congress in April 1997. 



II. BACKGROUND 
A. Overview 

The Secretary of the Interior has the responsibility to ensure the proper 
accounting, investment and financial reporting of over 300,000 Indian Tribal and 
individual Indian money (IIM) trust fund accounts. The authority for management 
of Indian trust funds was delegated to the Assistant Secretary, Indian Affairs, and 
re-delegated to the BIA. Since February 1996, this authority has been delegated 
to the Office of the Special Trustee (OST) through the transfer of authority over 
the Office of Trust Funds Management (OTFM). 

The American Indian Trust Fund Management Reform Act of 1994 (the Act) 
directs the Secretary of the Interior to prepare a report to Congress by May 31, 
1996, to include a description of the procedures used for reconciliation of the 
Tribal trust fund accounts and a statement outlining efforts the Secretary will 
undertake to resolve disputes regarding Tribal account balances.' The 
reconciliation was carried out by the Bureau of Indian Affairs (BIA) in an effort 
called the Tribal Trust Funds Reconciliation Project (the Project). This report 
identifies for Congress the general approach the Secretary is contemplating for 
resolving account balance disputes and includes specific recommendations to 
resolve known errors. The Department will consult with the Tribes by circulating 
this report to Tribal account holders and seeking their comments on the various 
approaches to settlement and to the specific questions raised herein. 



Because most Tribes did not have sufficient time to review their reconciliation rcpons and inform the 
Depanment whether they disputed their account balances (known as "attestation responses") as of the May 31 
deadline, the Secretary submitted to Congress an intenmrepon describing the reconciliation procedures on May 
31, and set a deadline of September 27. 1996, for submission of attestation responses. With the extension of 
the deadline for submitting attestation responses, the Secretary indicated that he would submit a supplemental 
repon to Congress, including proposed legislative options to address disputed account balances later in the year. 



Attachment C Part 1 to Boswell Declaration 0555 



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This analysis incorporates many of the settlement recommendations of the 
Special Trustee's Advisory Board, which was created by Section 306 of the Act 
(hereinafter the "Advisory Board"). The Advisory Board's settlement proposals 
were submitted to the Secretary on September 24, 1996, and were the result of a 
series of consultations between the Special Trustee, his Advisory Board and several 
Tribes. As requested by the Special Trustee, the Advisory Board's 
recommendations are appended to this paper. In our recommendations, we 
describe where we agree and where we disagree with the Advisory Board's 
recommendations . 

B. Tribal Accounts Versus Individual Indian Accounts 

There are two general types of accounts which are administered by the 
OST.^ First, there are Tribal trust fund accounts maintained on behalf of 301 
account holders. Second, there are IIM accounts, maintained on behalf of over 
300,000 individual Indians. The options outlined in this analysis address 
approaches for resolving account balances of Tribal accounts only, because Section 
304 of the Act requires a report on only those accounts. While this report does 
not address resolution of IIM account balances, on June 10, 1996, a class action 
lawsuit, captioned Cobell v. Babbitt , was filed in U.S. District Coun on behalf of 
the IIM account holders. Settlement discussions are proceeding between attorneys 
for the plaintiffs and the United States to attempt to resolve claims by the IIM 
account holders. Unlike the Tribal trust accounts, no historical reconciliation of 
the IIM accounts has been performed because of the inordinately high costs -- 
estimated in 1992 to be in the SI 08 million to $281 million range - of conducting 
such a reconciliation. The settlement process in the litigation, if successful, may 
provide a more efficient means of estimating liability, if any. ^ Some components 



All Indian trust fund accounts were historically administered by the Bureau of Indian Affairs ("BIA"). In 
February 1996, the Secretary re-delegated the responsibility for management of Indian trust fund accounts to the 
Office of the Special Trustee, through the transfer of authority over the Office of Trust Funds Management 
(OTFM). 

' The Advisory Board selected the $281 million amount simply because it was the upper end of an early 
estimate of Arthur Andersen L.L.P., for undcnaking a reconciliation of the IIM accounts similar to the 
reconciliation already conducted for tribal accounts. The Advisory Board reasoned that rather than spending 
this sum "to produce what is likely to be an unsatisfactory result," that amount should be "used to compensate 
IIM account beneficiaries for any harm, damage or loss arising out of the government's inability to provide an 
accurate and timely accounting to IIM trust account holders. " In our view, there is no demonstrable 
relationship between the "harm, damage or loss" that IIM account holders may have suffered and the cost to 
produce a reconciliation of the IIM accounts. Moreover, the Advisory Board's recommendations do not make 



Attachment C Part 1 to Boswell Declaration 0556 



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of the Tribafsettlemem legislation outlined in this repon may also be appropriate 
for settling components of the IIM claims as well at issue in the Cobell litisation/ 

C. Legislation Versus Litigation 

We believe that legislation rather than litigation would provide an orderly 

and efficient mechanism for resolution of the disputes over account balance's 

arising out of the Project. The proposed legislative approach described here 

responds to the statutory directive that the Secretary outline efforts to resolve such 

disputes in his repon to Congress. It would address only those claims arising from 

the Project, not individual Indian accounts or other funds. Case-by -case litrgation 

would be wasteful, expensive and time-consuming. Given the inadequacy of the 

available records and the historical deficiencies in BIA's accounting and 

management systems, additional reconciliation efforts that would accompany 

litigation would, at best, produce only marginally more refined data. Moreover, 

some elements of a settlement policy, including forgiveness and offset of claims, 

might be desirable and legislation could define the parameters of the Department's 

authority to implement them. Legislation also could address funding sources for 

the settlement. 

D. Past Versus Future 

This report addresses options for a legislative resolution of problems from 
the past - the Tribal trust fund account balance disputes. On a separate track, the 
Secretary and the Congress, through the effons of the Special Trustee, are 
evaluating approaches for comprehensive reform of the Depanment's management 
of trust systems for the future. The Special Tnistee has completed an assessment 
of trust management policies, procedures, practices and systems as they apply to 
both IIM and Tribal accounts. He has produced a concepmal strategic. plan to 
acquire and instinitionalize new trust accounting and management systems. 
Through additional analysis and consultation with both Tribal and federal interests. 



clear how IIM account holders would agree that the payment was in full satisfaction of their individual claims. 

The settlement recommendations of the Advisory Board include a proposal for settling IIM accounts 
which was developed prior to the filing of the Cobell litigation. The Advisory Board proposed, among other 
things, a payment of S281 million to be deposited in the IIM Investment Pool and subsequently invested for the 
benefit of IIM account holders. The payment would be a permanent fund, generating interest for IIM account 
holders, and aJso would serve as a reserve to pay claims successfully brought by individual account holders. 



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the conceptual plan will be transformed into a strategic plan as required by the Act 
and submitted to Congress. The President's annual budget requests for the 
Depariment include funds earmarked for implementing the Special Trustee's 
strategic plan.^ 

E. Structure of this Report 

Part III of this report describes in detail the Department's role with respect 
to Tribal and IIM trust funds, deficiencies in the records concerning trust accounts 
and balances, and the Project which studied Tribal trust fund investment 
transactions for a 20-year period. 

Part IV presents some options for settling Tribal claims based on errors, 
incomplete documentation or inaccurate accounting of trust funds during the 
reconciliation period, 1972-1992.^ As noted, the Department needs to consult 
further with Tribes and with others in the Administration to develop an appropriate 
settlement proposal. This part of the analysis does not address issues relating to 
the individual Indian money accounts held by the United States on behalf of 
individual Indians or Tribal claims outside the scope of the Project. 

Part V outlines options for Congress to structure any future litigation 
concerning Tribalclaims based on alleged trust fund losses. While the idea behind 
the settlement proposal being developed by the Department is to encourage 
settlement through means other than litigation, we also envision that it will be 
necessary to provide those Tribes thai choose not to settle a fair process to litigate 
their claims. 

Part VI presents the concept of a "total settlement" that would resolve claims 



' The Advisory Board proposed S147 million for implememation of the strategic plan as a component of a 
joint settlement for IIM and Tribal account holders. This amount is based on preliminary estimates, and 
includes approximately $20 million in annual operating costs over five years, and $47 million of one-time 
equipment and infrastructure costs. The Department proposes to continue to request funding of implementation 
costs as pan of its annual budgets. The enacted FY 1997 Interior and Related Agencies Appropriations Act 
included $15,726,000 for implementation of the Special Trustee's strategic plan, including funding for 
immediate office staffing and the Advisory Board. Fumrc Depanmenial requests will be based on the final 
approved strategic plan being developed by the Special Trustee in 1997. 

* There is potential overlap between settlement options for the Tribal claims and the claims in the Cobell 
litigation. Certainly, Congress could consider a broader settlement package which addresses both Tribal and 
IIM claims. 

8 



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beyond the scope and [ime frame of the Project and any claims that mav relate to 
historical mismanagement of trust assets. Undertaking additional reconciliation 
efforts or litigating these claims could be particularly expensive. With the Tribes 
and Congress, and after further consulrarion within the Administration, we would 
like to. explore possibilities for legislative resolutions that would resolve disputes 
on behalf of all or virtually all Tribes, and that would provide final account 
balances for Tribal trust funds as of September 30, 1995. 

At this stage, the Department is merely exploring whether a "total 
settlement" is warranted and whether it would be fair to all concerned We do not 
endorse at this time the concept of a "total settlement" or any of the specific 
alternatives presented for comment. As a result of additional consultation, other 
ideas could emerge which might produce a more equitable result for all involved. 
We also have tried to identify important questions about these options; many of 
these questions do not have obvious or easy answers. 

ni. RECONCILIATION EFFORTS FOR TRIBAL TRUST FUND 
ACCOUNTS ' 

A. The Project 

Over the past decade, operational reviews and financial audits have identified 
weaknesses in the control and oversight of Indian trust funds. A primary concern 
was the failure to reconcile the trust fund accounts regularly and to assure that 
account balances were accurate. Consequently, in 1988, 1989 and 1990, Congress 
directed BIA to take steps to reconcile Indian trust fund accounts as accurately as 
possible back to the earliest possible date. The FY 1990 appropriations language 
funher required that "the results of such reconciliation [be] certified by an 
independent party as the most complete reconciliation of such funds as possible." 

Pursuant to these directives, BIA commenced its Project in 1990. In the fall 
of 1990, an ad hoc Tribal advisory group' worked in conjunction with the BIA, 
the General Accounting Office (GAO) and the Department's Inspector General to 
develop a request for proposal for the reconciliation contract. In May 1991, the 
contract was awarded to a national accounting firm, Arthur Andersen, LLP. 



The ad hoc group constituted itself as the IntenribaJ Monitoiing Association (ITMA). 

9 

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Phase I of the contract was intended to determine what records were 
available, what procedures would be necessary, and the cost of a complete 
reconciliation for both Tribal trust and IIM accounts. This work was performed 
from June 1991 through January 1992. The results of Phase I disclosed that nor 
all supporting documents could be located, but to the extent they could be located, 
they could be examined, and that some BIA trust policies, procedures, and systems 
had deficiencies. As a- result, it was agreed; through discussions involving the 
Department, the Office of Management and Budget (0MB), Congress, and the 
Intertribal Monitoring Association (ITMA), that a conventional financial audit was 
not likely to produce meaningful results. 

In view of this, the Depanment of the Interior, in consultation with 0MB 
and ITMA, considered alternative methodologies and approaches with the goal of 
producing as accurate an accounting as practicable. As a result, the BIA modified 
the Arthur Andersen contract to incorporate the methodological procedures agreed 
upon by the Department, 0MB and Tribal representatives. While the procedures 
do not constimte an audit in accordance with generally accepted auditing standards, 
they were deemed to be the best available approach and were therefore used to 
reconcile the Tribal trust fund accounts for the period July 1, 1972 through 
September 30, 1992. The year 1972 was selected as the staning point because it 
coincided with the date on which BIA assumed sole responsibility for Tribal trust 
fund accounting and recordkeeping to the account level. Prior to that time, the 
Depanment of the Treasury had accounts for individual Tribes listed within its 
systems, although BIA may have reported the amounts to be placed in the accounts 
(in contrast to the current practice where there is one combined account for all 
Tribes at Treasury). 

In accord with the Congressional mandate that the Tribal trust fund 
reconciliation be certified by an independent third party, the BIA awarded a 
contract to perform the certification to Coopers and Lybrand in September 1993. 
Due to a projected cost that far exceeded available resources, BIA terminated the 
contract in October 1995, before the certification was completed. At BIA's 
request. Coopers and Lybrand provided a close-out letter summarizing the work 
performed prior to termination. In the letter, Coopers stated that it noted errors 
in certain aspects of Arthur Andersen's reconciliation work under the BIA 
contract, and that some, but not all, of these errors were reponed to Arthur 
Andersen and BIA. The letter further stated, however, that no conclusions-could 
be drawn from the preliminary information reported because Coopers did not 



10 



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complete the certification work. Arthur Andersen investisated and cleared the 
reported errors and a record of these activities are on file^at Arthur Andersen's 
office. 

In 1994, while the Arthur Andersen reconciliation efforts were oncroin^^ 
Congress passed the American Indian Trust Fund Manasement Reform Act of 
1994, 25 U.S.C. §§ 4001-4061, which established the "office of the Special 
Trustee for American Indians. Under this legislation, the Special Trustee is 
responsible for oversight, reform, and coordination of the policies, procedures 
systems and practices used by various Depanmental agencies in managing Indian 
tmst assets. The statute required that the Secretary transmit to Congress by May 
31, 1996, a report that describes the methodology and results of the tmst fund 
reconciliation process, includes Tribal attestations as to disputed account balances 
and outlines efforts the Secretary will undertake to resolve such disputes As 
noted, that report was submitted to Congress with a commitment to provide this 
supplemental report on the Secretary's recommendations for resolving account 
balance disputes. 

In January 1996, the Department released a report to 301 Tribal trust fund 
account holders summarizing the results of its Project. The agreed-upon 
procedures used in the Project were intended to accomplish the following: (1) 
verify that non-investment financial transactions posted to the BlA's official 
accounting records are in agreement with supporting financial source documents; 
(2) assess the accuracy of investment income posted to Tribal accounts; (3) 
recalculate the U.S. Treasury interest earnings; (4) reconcile general ledger 
transactions with U.S. Treasury transactions; (5) verify that financial transactions 
posted to the accounting records are in agreement with the originating lease or sale 
agreements, permits, or contract terms (not completed for all transactions); and (6) 
determine the timeliness of the deposit of receipts (for informational purposes 
only). The Project report indicates that of the $17.7 billion (absolute value)' in 
non-investment transactions, $15.3 billion of transactions were reconciled, while 
S2.4 billion (absolute value>-were unreconciled (that is, as of the time the Project 
was completed, financial source documents could not be located to support the 



While Title III of the Act vests this responsibility in the Special Tmstec. the Act funher provides that the 
Special Trustee "shall repon directly to the Secretary." Section 302(a), 25 U.S.C. § 4042(a). 

The absolute value of transactions means disregarding the positive and negative values of the transactions. 

11 . 

Attachment C Part 1 to Boswell Declaration Pi^^^l 



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accuracy of these transactions as entered on BlA's eeneral Jedser). For example 
the general ledger might show a receipt of 51^000 to a tribal account in 
connection with a mineral lease of trust property; however, the underlying 
documentation necessary to verify its accuracy could not be located. (See pases 
21-22 for a more complete description of these unreconciled transactions). 

The reconciliation procedures and the proposed adjustments to account 
balances are detailed in the Project report, and were explained to the Tribes at a 
national meeting on February 14 and 15 in Albuquerque, New Mexico. More 
detailed individual consultation was -provided to account holders at a series of 
regional meetings held through July 1996. In August 1996, die Special Trustee 
sent out a request for all Tribes to submit attestations as to acceptance or dispute 
of their account balances on or before September 27, 1996. 

As of November 1, 1996, the OST received attestation responses from 79 
of 301 Tribal trust fund account holders. 33 Tribal account holders accepted the 
account balances as reflected in the Project, and 46 account holders disputed the 
balance. 49 account holders requested additional time for their response. 173 
account holders filed no attestation response. Among the reasons given by those 
account holders which disputed their account balances were that the reconciliation 
procedures were inadequate, that they needed additional time, and that the records 
were inadequate. Other comments were more specific in nature and did not fall 
into one of diese categories. Some account holders identified more than one 
reason for disputing their account balances. 

Despite five years of effort and the expenditure of $21 million, the Project 
provides a less than complete accounting of the state of the Tribal trust funds. The 
inadequacy of the Department's trust management systems, policies, procedures 
and practices, the condition of the trust records, the fact that a substantial number 
of documents relating to the 20-year period could not be located as of the time the 
Project was completed, and funding constraints all contributed to the Department's 
inability to verify the accuracy of Tribal account balances. 

The Project did identify specific errors which resulted in underpayments to 
Tribal trust fund account holders. These must be corrected and options to do so 
are outlined below. The Project also uncovered errors which resulted in 
overpayments to Tribes. Whether and how to recover these amounts is also 
discussed below. The most difficult issues, however, relate to (1) the unreconciled 

12 
Attachment C Part 1 to Boswell Declaration 



Ct'^l^l 



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iransaciions where there were no records located to support S2.4 billion of non- 
invesrment transactions for the 20-year period of the Project: and (2) those 
transactions outside the scope and period of time covered by the Project. 

B. Types of Claims 

For purposes of this analysis, the three basic types of potential claims that 
may arise from the Project results are referred to as Type 1, Type 2, and Type 3 
claims: 

• Type 1 claims are based on errors specifically identified in the Project 
for which there was a documented loss to the Tribe or the 
government. Type 1 claims involve two types of circumstances; 
either funds are owed by the government to a Tribal account, or the 
Tribal account was overpaid and it owes funds to the government. 

• Type 2 claims are those where a Tribe disputes its account balance 
from the Project based on additional documentation produced by the 
Tribe. Because no Tribes responded to a letter sent to them in 
January 1994, requesting any records in their possession relating to 
transactions on the general ledger, there may be few Type 2 claims. 
Nevertheless, there is a need to offer a means for addressing these 
claims, should they arise. 

• Type 3 claims arise from unreconciled transactions, where neither the 
Tribe nor BIA could locate source documentation to support the 
account transactions or to support a conclusion that those transactions 
are in error. This is by far the largest category. 

There also are claims arising from transactions that were outside the scope 
of the Project, or outside the 20-year period covered by the Project. It is 
impossible to estimate the amount of those claims or to identify the specific Tribe 
or account to which money may be owed. Should Congress conclude that it wants 
to address these types of claims, this analysis outlines several different approaches 
for doing so, in the form of "total settlement" options. 



IV. OPTIONS FOR SETTLEMENT OF SPECIFIC CLAIMS 

13 



Attachment C Part 1 to Boswell Declaration ^-, 



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ATTACHMENT C 



TO BOSWELL 



DECLARATION 



PART 2 



Case 1:06-cv-01897-JR Document 26-13 Filed 08/11/2007 Page 2 of 22 



A. Detailed Discussion of Options for Legislation 

We are considering the following framework for legislation and options to 
settle the three types of Tribal claims: 

1. Payment of Tvpe 1 Claims 

• Payment of All Claims. Type 1 claims are those where the Arthur 
Andersen Project report indicates that there has been an error. Because the 
Department has an obligation to correct its known errors, Tribes would be paid in 
full without regard to the Tribe's willingness to settle any other claims. The 
Department recommends that the goyernment pay the Tribe any principal amounts 
' owed, plus interest as defined below. 

Three types of claims fall within this category. First, of the amounts 
reconciled in the Basic Reconciliation portion of the Project, approximately $1.87 
million in transactions (excluding interest) were found to be in error -- an error 
rate of about .01 percent. An additional $25.2 million (absolute yalue) in 
proposed adjustments were idendfied in the entire Project.'" These known errors 
include both underpayments and overpayments to Tribal trust fund account holders. 

Second, some Tribes claim that interest is owed due to the lag time between 
when funds were paid to the BIA and when they were deposited. While we agree 
that interest should be paid, there is a quesdon as to when interest should begin to 
accrue. For example, interest could begin to accrue after 1-3 days, 4-6 days, 7-10 
days, 11-30 days or over 30 days. The Department believes it is endtled to a 
commercially reasonable time to deposit checks in Tribal accounts (due to mailing, 
processing, check clearance, etc.), but that time should be limited and Tribes 
should receive interest only after that period has passed. We recommend that 
interest be paid to Tribes beginning after six (6) days, whether or not the funds 
have actually been deposited.'' In addition, there are interest claims relating to lag 
time from when money was received by the Minerals Management Service (MMS) 



'° The SI .87 million docs not include adjustments of less than SI .000 that were accepted wiOioui 
funhcr research, which arc referred to as "scoped adjustments." These scoped adjustments would also be 
considered known errors and would be paid as Type 1 claims. 

" Because reservations tend to be located in isolated and remote areas, reliance on mailing is typical. 
During the 1972-1992 reconciliation period, approximately one-third of the payments were made electronically. 

14 



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and when it was actually credited to the accounts by BIA. The Department 
believes that interest should be paid on these claims from the date the funds were 
received by MMS. If Congress adopts this policy for the reconciliation period, the 
government would owe SI. 7 million in back interest '- 

The third type of Type 1 claims involve so-called "rollover amounts." 
These amounts result from end-of-accounting period balances in Tribal trust 
accounts in BIA's general ledger that do not always equal -.ne balance recorded in 
the general ledger for the beginning of the subsequent accounting period. The 
Advisory Board proposes to forgive S26. 1 million in principal plus interest in cases 
where an account balance increased, and to pay Tribes $17.5 million in principal 
plus interest where a Tribe's account balance decreased. These amounts assume 
netting of rollover increases against rollover decreases at the account level; and no 
netting of rollover adjustments against known errors. 

These rollover discrepancies result from accounting entries that change the 
beginning balance of a Tribe's account for an accounting period. Although a 
transaction history does not show up in the BIA general ledger, the entries should 
appear in the BIA's monthly journal of transactions or other supponing documents. 
Because of time constraints imposed on the Project, research necessary to support 
these transactions could not be performed prior to the issuance of the final 
reconciliation reports to the Tribes. 

The OST has recently begun an effort to research rollovers where a tribe's 
balance decreased from one accounting period to the next. To date, S5.2 in 
rollover decreases have been verified by the OST staff. OST will continue this 
research effort. To the extent that the Department is unable to reconcile rollover 
decreases, the Department agrees with the Advisory Board's proposal to pay 
Tribes principal plus interest in cases where account balances have decreased.'^ 
However, the Department proposes that these amounts be netted against known 
errors inuring to a Tribe's benefit.'* 



t 

S 1 .4 million is attributable to the BIA deposits and S.3 million is attributable to the MMS deposits. 

'^ It should be noted that while the Department is proposing that unexplained rollover decreases be 
paid to Tribes, it has not been determined that an error, in fact, occurred in these instances. 

'•' The Depanment does not agree with the Advisory Board's classification of rollover increases as 
amounts that need to be "forgiven." In order to determine whether rollover increases actually represent 



15 



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• Interest policy. An issue that must be resolved is how interest should be 
paid on amounts owed to Tribes. There are two considerations in that reeard: 
whether simple or compound interest should be paid, and what rate of interest 
should be used. 

The Advisory Board proposes that interest payments be determined by 
computing compound interest at a blended Tribal benchmark rate.'^ While the 
Tribal benchmark rate is skewed somewhat on the high side by a number of long- 
term instruments held in one account, it nevertheless has the advantage of being 
easily determined. Against this is balanced the fact that the compound rate is 
greater than what a Tribe could likely recover in litigation; courts generally limit 
the interest on government trust fiinds to simple interest on principal only.'*^ 
Accordingly, the Department recommends that simple - not compound -- interest 
be paid at the blended Tribal benchmark rate. 

• Forgiveness and netting policv. The Project results indicate that in some 
cases, BIA errors resulted in overpayments or erroneous payments to a Tribe or 
to a particular Tribal account. As a result, some Tribes owe the government 
money. When interest is included, the amounts owed by Tribes to the federal 
government can be significant, and repayment would be a particular burden for 
Tribes with limited financial resources. The Department has considered whether 
it should recommend to Congress that some or all of the amounts owed by Tribes 
to the government should be forgiven. Although a policy of forgiving amounts 



overpayments to Tribes, it would be necessary to perform research on the underlying transactions recorded in 
BlA's monthly journal of transactions or other supponing documents. Absent this work being performed, it 
cannot be concluded that these rollover increases represent overpayments to Tribes. However, to ensure that 
the issue of rollover increases is resolved by the settlement, the Depanmeni contemplates that settlement 
legislation will provide that unreconciled rollover increases to a Tribe's accounts be deemed accurate 
transactions. 

'^ The Tribal benchmark rate is. the average annual yield of invested Tribal trust funds. 

'* It is well settled that the Tribal owner of interest-bearing trust funds that are improperly disbursed 
by the federal government can recover onJy the amounts disbursed plus simple interest annually thereon (at the 
rate prescribed by statute to be paid on these funds). Sec, e.g. . United States v. Gila River Pima-Maricopa 
Indian Community . 586 F.2d 209. 216 (Ct. CI. 1978); White Mountain Apache Tribe of Arizona v. United 
States . 20 Ci. Ct. 371, 377 (1990). And, where a statute or treaty provides for the payment of simple interest, 
compound interest is not recoverable. United States v. Mescalero Apache Tribe . 518 F.2d 1309, 1331-33 (Ct. 
CI. 1975), cen. denied , 425 U.S. 911 (1976). In contrast, compound interest is frequently awarded in private 
sector litigation. 



16 
Attachment C Part 2 to Boswell Declaration 



OSfifi 



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owed from Tribes co the United States would deny the government potential 
revenue, forgiveness of a debt does not require the fiirther expenditure of funds. 
Congressional authorization would define the parameters of the Depanment's 
authority to forgive the repayment of obligations due the government. 

The Advisory Board believes that amounts owed by Tribes to the 
government as a result of errors should be forgiven, for the following reasons: 

A. These are known and admitted errors of the U.S. Government. Even 
though the Tribes apparently benefitted by these overpayments, they should 
not be asked to repay amounts which arose out of the U.S. Government's 
inability to provide an accurate and timely accounting. 

B. These admitted errors were made over a period of twenty years. The 
usual and customary standards for clearing similar exception items in the 
private sector is one accounting period, usually ninety days or less.'' ' 

C. The overpayments were identified for reconciled items only. Had a full 
accounting been possible for the S2.4 billion in unreconciled non-investment 
transactions, or had a full accounting been possible verifying financial 
transaction to source documents (such as land leases and contracts), or had 
the Project covered different time periods, the net result for a panicular 
Tribe may have been different. 

D. Tribes should not be asked to reimburse the government unless the 
government can document that no subsequent correcting entry was made. 

There are various forms that a forgiveness policy could take. For example, 
amounts that are owed to and from a panicular Tribal account, or to and from a 
particular Tribe (as explained below, some Tribes have several different accounts), 
could be offset against each other, or "netted." How the netting policy is 
structured has significant financial ramifications. It also could have important legal 
implications that would require a legislative resolution. 



While there may be regulatory requirements that exception items be cleared in one accounting period 
for regulatory or accounting purposes, this does not necessarily mean that a private sector institution would 
forgive an error in the customer's favor. Such practices vary by institution, amount at issue, type of customer 
and other relevant circumstances. 

17 



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The Depanmem maintains two basic categories of funds for. Indian Tribes: 
Judgment funds and Indian Money Proceeds of Labor funds. Within these two 
major categories, various accounts may exist. For example, within the Judgment 
category there are accounts for specified purposes, such as education, economic 
development, burial, etc. Within the Proceeds of Labor category, there are 
accounts for the proceeds from various tribal resources, such as grazing, mineral 
leasing, and forestry. If a netting policy authorizes or requires offset or netting 
of funds among accounts of different types, then funding for the specified purposes 
of the accounts may be altered. The interests of specific classes of beneficiaries 
(e^., all Tribal members, minors) in panicular accounts would be altered. The 
Department believes that Congressional authorization may be required for. such 
alterations. 

There are several different options for netting discussed below. The 
estimated cost to the Treasury for each is based on the government paying Type 
1 claims using the assumptions described above (simple interest based on. the 
Tribal benchmark rate) and does not include adjustments for rollover amounts. 

Under a no-netting approach, the government would forgive all amounts that 
were overpaid to Tribes and pay all amounts owed to Tribes, plus interest. This 
approach would require the greatest expendimre and forgiveness of public funds 
to pay claims, with acmal payment of $13.1 million in principal and $11 million 
in interest, and forgiveness of $14.0 million in principal and $9.4 million in 
interest. 

Neaing to the Tribal level would provide for adding or subtracting of all 
amounts owed to or from a Tribe for all accounts owned by that Tribe (e.g.. 
payment was made to one account of the Tribe when it should have been made lo 
another, or payment was made in the wrong amount to a Tribe's account). In 
other words, all plus and minus adjustments for all of a Tribe's accounts would be 
netted together to arrive at a net amount due to or from a Tribe. Interest would 
also be netted to arrive at a net amount due to or from a Tribe. If this process 
resulted in a net amount (principal and interest) due to a Tribe, the government 
would pay that amount. If it resulted in a net amount (principal and interest) due 
from a Tribe, the goverrmient would forgive that amount. Netting to the Tribal 
level would result in the government paying $3.5 million in principal and $4.0 
million in interest, and forgiving $4.4 million in principal and $2.2 million in 
interest. 



18 



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Netting to the Tribal account level would provide for netting all amounts 
within one account owned by a Tribe, but would not net all accounts of that Tribe 
against each other. For example, if netting all amounts due to and from a Tribe's 
settlement fund accounts resulted in a net amount due to the Tribe, the government 
would pay that amount plus interest to the settlement fund accounts. If^his method 
showed a net amount due from the Tribe, the government would forgive that 
amount. This approach would require payment of $10.7 million in principal and 
59. 5 million in interest, and forgiveness of SI 1.6 million in principal and S7.7 
million in interest. 

Even with a netting policy, a Tribe still may be found to owe the 
government money. If no additional forgiveness of the debt is granted. Tribes 
would be required to reimburse the government. Under the recently enacted Debt 
Collection Improvement Act, 31 U.S.C. § 3711, et seq . (DCIA), the government 
may offset payments to satisfy delinquent debts. Applied here, the DCIA could 
require the government to offset any funds that the government may pay the Tribe 
in the future against amounts owed by the Tribe to the government.'* If additional 
forgiveness is granted, however, a Tribe whose debts are forgiven will have been 
treated more generously than a Tribe who did not need the additional forgiveness, 
simply because the amount owed by the Tribe to the government happened to be 
greater than the amount owed to the Tribe by the government. 

The Department envisions that a forgiveness and netting policy should apply. 
We also anticipate that the settlement legislation should include provisions for 
nening at the Tribal level. Although the Advisory Board proposed netting at the 
Tribal account level, that approach fails to recognize that the Tribe already had the 
benefit of the funds, albeit not necessarily for their original intended purpose. Any 
legal infirmity due to the inadvertent mixing of funds among accounts would be 
remedied by the legislation authorizing the settlement. For example, to the extent 
payments are made to a Tribe, the legislation could authorize Tribes to direct the 
funds be allocated within their various accounts as the Tribes deem appropriate. 



Under the DCIA, any federal agency that is owed by a person a past due legally enforceable debt 
(other than taxes) that is over 180 days delinquent is required to notify the Secretary of the Treasury. The 
Secretary offsets the debt against cenain amounts that may be owed lo that person. Historically, the BIA has 
not considered an Indian Tribe to be a "person." although the Depanment has not yet reached a conclusion 
under the DCIA. If, however, a Tribe is deemed to be a "person" under the Act, the offset provisions would 
apply, subject to provisions of the DCIA prohibiting use of administrative offset for debts over ten years 
delinquent. 

19 



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,„ After the netting policy is applied, if a Tribe still owes the governmeni 
money, the Department recommends that the debt be forgiven. This forgiveness 
policy would nullify application of the DCIA because there would no longer be a 
valid and legally due debt owed to the United States. 

• Waiver/Review. We believe that Tribes which accept payment of Type 
1 claims under this settlement process should be required to waive bringing any 
Type 1 claims as part of any subsequent litigation involving claims encompassed 
in the scope and time period of the Project. Therefore, we propose that legislation 
specify that Tribes choosing not to settle their Type 1 claims pursuant to the Type 
1 claims procedures will not be entitled to the favorable standards governing 
nening interest rate or forgiveness that may ultimately be applied under the 
settlement procedure. In other words, we propose offering favorable rules on 
nening, interest rate, and forgiveness as an inducement to settle and avoid further 
litigation. 

2. Evaluation of Type 2 Claims 

• Evaluation/Guidelines . Type 2 Claims involve one of two circumstances. 
First, there may be disputes about an account balance based on additional 
documentation in the Tribe's possession. The Department would evaluate those 
claims pursuant to the reconciliation standards employed by Arthur Andersen in 
the Project.'' Second, there are so-called "passed adjustments" -- transactions 



" In the course of the Project, approximately S6.035 billion in disbursement transactions were 
categorized as reconciled. Of this amount, about a third - $1,925 billion in transactions -- were reconciled 
based on complete voucher packages. The balance - $4,110 billion in transactions -were reconciled based on 
disbursement voucher packages which may not have included, or may not have been required to include, all the 
supponing documentation described below. A complete disbursement package could include a series of 
transactional documents, including a signed Form SF-1 166 (Authorization to Disburse); an accomplished copy, 
endorsed by the Treasury Depanment. of that same Form SF-1166; a Form SF-1034 (Request for 
Disbursement); and an accompanying Tribal resolution or other Tribal authorization, either authorizing a 
particular signatory for the SF-1034, or merely requesting payment of the funds. The Advisory Board 
concluded that '(bjecause some degree of proof of payment exists and because the Tribes now have access to 
the images and the documentation for all these transactions, the burden of bringing a claim should fall on the 
Tribes." The Board estimated that the probability of a loss from incomplete disbursement voucher packages is 
most likely less than 10 percent. The Board proposed an aggregate settlement of S400 million (about 10 percent 
of total incomplete disbursement packages), $200 million of which would be used 

as pan of the initial capital of an Indian Development bank (described below), and $200 million of which would 
be used to satisfy specific claims brought by the Tribes, with individual accounts capped at 5 percent of total 
incomplete disbursement packages for that Tribe. The Depanment disagrees with this proposal because these 
transactions have been reconciled pursuant to the procedures and standards of the Project. 

20 

Attachment C Part 2 to Boswell Declaration 0570 



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which were deemed to be reconciled even though BIA and Arthur Andersen 
disagreed about the adequacy of che documentation to support the transaction. 
Claims based on passed adjustments would be handled by submirting them directly 
to the negotiation/mediation process described in the following paragraphs. 

• Process. The Depanment, through the OST, would be authorized to 
negotiate with Tribes in good faith in an effort to resolve Type 2 claims. If the 
Depanment agrees diat an adjustment should be made, resolution would be 
stmcrured under the provisions for Type 1 claims (including interest rate, 
forgiveness, netting, etc.). If the new documentation is insufficient under the 
guidelines to categorize the claim as a Type 1 claim, the claim would be handled 
under the procedures adopted for Type 3 claims as described below. 

In the event. the Depanment and the Tribe are unable to agree on the 
disposition of a Type 2 claim, the Tribe could request that the matter be submitted 
to a mediator. The Federal Mediation and Conciliation Service would be 
requested to appoint a mediator skilled in dispute resolution who would seek to 
resolve the issue using alternative dispute resolution mechanisms. Resolutions 
could include categorizing the" claim as a Type 1 or Type 3 claim to be settled 
under the legislated settlement process, proposing a cash settlement or concluding 
that the claim lacks merit. Mediation would be non-binding. 

• Timing. The legislation should provide that Type 2 claims be submitted 
to the Depanment within a specified period - perhaps two years. It is possible 
that a Type 2 claim would be recaiegorized as Type I after consideration by the 
Department or a mediator. If this could be done promptly enough, all Type 1 and 
Type 2 claims could be settled simultaneously. However, because the Tribes have 
no incentive to submit Type 2 claims in instances where they will owe the 
government money, and because the Depanment believes that it is important to 
resolve the Type 1 claims as promptly as possible, the Depanment would attempt 
to handle Type 1 and Type 2 claims together wherever possible, but sees no reason 
to delay resolution of the Type 1 claims until the Type 2 process is complete. 

3. Settlement of Tvpe 3 Claims 

During the course of the Project, 32,901 transactions totaling S2.4 billion 
(in absolute terms) were identified for which supporting documentation was not 



21 



Attachment C Part 2 to Boswell Declaration q^-j^ 



Case1:06-cv-01897-JR Document 26-13 Filed 08/11/2007 Page 10 of 22 



iocared.-° The Depanmem estimates that the maximum potential claims aaainst the 
government amount to approximately S575 million for the following reasons. Of 
the total S2.4 billion, Si. 123 billion were transactions involving receipt of funds 
by the government on behalf of a Tribal account from third panies. The 
government can demonstrate that the unreconciled receipts were posted to the 
general ledger accounts of a particular Tribe. Accordingly, it is likely that those 
Tribes benefited from receipt of the funds and the chance of loss is relatively low. 
(While there is a possibility of a posting error, the Project demonstrated that 
posting errors in reconciled transactions for the basic reconciliation were extremely 
low - approximately .01 percent). If errors did occur, such as the funds being 
credited to the wrong Tribe or Tribal account, there is no way to determine which 
Tribe or account should have received the money and therefore, no way to direct 
a corrective deposit. 

Similarly, $479.6 million of the unreconciled transactions were transfers of 
funds within different accounts of the same Tribe. For example, funds may have 
been erroneously credited to a Tribe's education account which should instead have 
gone to its burial account. In order to rectify the situation, the funds must be 
debited from die education account, and then credited to the burial account. In 
such a simation, there would be no net change in the amount of funds held for the 
Tribe's benefit. While there is no way to determine whether damage occurred to 
panicular beneficiaries of specific accounts as a result of unreconciled transfers, 
it is clear that members of the intended Tribe benefited from these transfers even 
if they were placed in the wrong accounts. 

Finally, there were $808.6 million in disbursement transactions for which 
there was no supporting documentation. Of that amount, $73.6 million are 
positive disbursements (Le., receipts) where even had there been an error, it would 
have benefited the Tribe. An additional $40.5 million was for attorney and expert 
witness fees and $119.5 million were disbursements of settlement funds to Alaska 
Regional Corporations. It is reasonable to presume that attorneys, expert 
witnesses, and the Alaska Regional Corporations would have filed claims had the 



It is imponant to note that the lack of supporting documentation for S2.4 billion in transactions docs 
not mean the money was lost, stolen, or otherwise misappropnated. it means that the BIA was unable to locate 
documents to suppon the accuracy of transaaions reflected in the general ledger. An analogy in the general 
commercial banking sector would be if a bank were unable to locate copies of cancelled checks. 

22 



Attachment C Part 2 to Boswell Declaration 



Case1:06-cv-01897-JR Document 26-13 Filed 08/11/2007 Page 11 of 22 



payments not been made.-' 

As a result, deducting the positive disbursements, attorney fees, expert 
witness fees and Alaska Regional Corporation disbursement transactions, tlie 
Department believes that the settlement options should focus on the remaining 
5575.1 million of undocumented disbursements. 

• Senlement of claims. Developing an equitable settlement for potential 
Type 3 claims is not a simple task. On the one hand, guidelines governing the 
Project indicated that a transaction would not be categorized as reconciled without 
cenain documentation to suppon that funds were handled as reflected in the 
general ledger. On the other hand, there was no indication during the course of 
the Project that Tribal or IIM funds have been misappropriated, misdirected or 
lost, although the Project did not specifically examine fraud. And, as noted above, 
for the 86 percent of transactions which were reconciled, the error rate was 
extremely low -- .01 percent. 

The Department intends to consult with Tribes on their recommendations on 
how to address Type 3 claims. We have no preconceived approach as we enter 
these consultations. 

The Advisory Board proposes that with respect to undocumented 
disbursements, a total payment of $300 million would be distributed 
proponionately to all Tribes with trust accounts, based on the product of the 
percentage of the Tribe's unreconciled disbursements plus interest and the total of 
all unreconciled disbursements plus interest. According to the Advisory Board, 
this award equals 52 percent of total unreconciled disbursement exposure or 15.5 
percent of total unreconciled disbursement exposure plus compound interest (it 
would be 23 percent based on simple interest). In addition, the Advisory Board 
proposed a general settlement amount of $300 million to be used to help capitalize 
a proposed Development Bank for American Indians, in settlement of unreconciled 
receipts, transfers and disbursements (not otherwise addressed in the settlement). 

Under the Advisory Board's proposal, half of the amounts paid in settlement 
would be Tribe-specific, while the balance would go to the proposed Bank, for a 



The General Accounting Office recently commenced an investigation to determine if the Alaska 
Regional Corporations suffered losses with respect to these unreconciled disbursement transactions. 

23 
Attachment C Part 2 to Boswell Declaration 0573 



Case1:06-cv-01897-JR Document 26-13 Filed 08/11/2007 Page 12 of 22 



cotal amount" of S600 million. It is not clear, however, that the S600 million bears 
any relationship to any acmal government liabiliry for the unreconciled 
disbursement transactions; it should be noted that an unreconciled transaction does 
not necessarily mean that there was a loss. 

The Depanment requires additional consultation on how to address the Type 
3 claims before it makes a specific proposal to Congress. Among the issues on 
which we will seek the views of the Tribes are the following: 

On what basis does the Department compute the aggregate value of any 
settlement of Type 3 claims? 

Do Tribes want the settlement of Type 3 claims to be paid directly to 
individual Tribes, to go towards some type of total settlement option 
such as the proposed Bank, or a combination approach such as the 
one proposed by the Advisory Board? 

If claims are to be paid directly to Tribes, on what basis should the 
claims be valued? Should different types of claims be valued 
differently? How? 

If claims are to be paid through some type of total settlement option aimed 
at benefitting Tribes generally, what options should be considered? (The 
issues raised by total settlement options are discussed on pages .) 

What procedures should apply to settling the Type 3 claims? 

How should the proposed settlement be affected in the event that some Tribes 
choose not to participate in the settlement? 

How should the total amount of the settlement be determined? 

What type of waiver of claims should be required of Tribes that opt to ■ 
participate in the Type 3 settlement process ? 

What percentages should be used to. calculate settlement amounts? 

To the extent that compensation is paid for transactions for which no 



24 



Attachment C Part 2 to Boswell Declaration 0574 



Case1:06-cv-01897-JR Document 26-13 Filed 08/11/2007 Page 13 of 22 



documemaiion exists, how should it be distributed among the Tribes? 

V. LITIGATION 

Tribes that do not settle their claims under the settlement procedure outlined 
above may wish to litigate those claims in court. In the past, similar litisation has 
often proved extremely costly and time-consuming for all the litigants. Given this 
history, we specifically want to avoid any litigation process that would resemble 
the Indian Claims Commission proceedings of years past. To avoid this result, we 
believe that legislation establishing the settlement procedures also must establish 
certain parameters for judicial litigation of claims of non-settlers. Such parameters 
are necessary to ensure diat litigation proceeds in an orderly and efficient manner, 
to ensure that the beneficiaries of ±q claims, as opposed to their attorneys and 
accountants, are the persons who benefit from any amounts recovered in litigation, 
and to encourage settlement of as many claims as possible. The Depanment is 
considering several parameters including the following: 

• ^ Stamte of Limitations: AH claims for the period preceding September 
30, 1995,2- must be brought within two years of the date of enactment of the 
legislation or 90 days after the conclusion of the Type 2 claims process, whichever 
is later. 

• Burden of Proof: The Tribal account holder will bear the burden of 
proof on damages, under applicable fiduciary standards. The burden of going 
forward will first be on the account holder, to present a prima facie case on 
liability. If diat burden is satisfied, the burden of going forward then would shift 
to the government, to show that the Tribe's accounts are correct by some 
predetermined quanmm of evidence appropriate in the circumstances. The account 
holder would then have the oppormnity to produce evidence to respond to that 
showing. 



Although the Reconciliation Project covered the 1972-1992 time period, the Act provides that the 
Secretary's repon shall identify for each Tribal trust fund account, a balance reconciled as of September 30, 
1995. In response. OTFM has been internally reconciling Tribal trust fund accounts and providing statements 
to Tribal trust fund account holders since 1992. In order to bring some closure to the litigation process, wc 
propose that all claims for the period preceding September 30. 1995, must be brought by Tribes who choose to 
litigate. 

25 



Attachment C Part 2 to Boswell Declaration 



Case1:06-cv-01897-JR Document 26-13 Filed 08/11/2007 Page 14 of 22 



• Waiver : At the conclusion of any such litigation, the court would 
adjudicate and declare as final the balance in the accounts which are the subject 
of the litigation as of September 30, 1995. Any claims of mismanagement of the 
underlying trust assets also would have to be brought simultaneously or would be 
barred. 

The purpose of these parameters is to achieve a. final balance in Tribal 
accounts as of September 30, 1995, much like the Indian Claims Commission 
legislation, which also established a baseline date from which to look forward. 



VI. TOTAL SETTLEMENT ALTERNATIVES 

The settlement process outlined above concerns resolution of claims arising 
within the scope and period of the Project. It does not address claims that Tribes 
may have arising from the period preceding or subsequent to the reconciliation 
period, or for claims related to deficiencies in other aspects of the Department's 
trust asset management outside the scope of the Project (including management of 
the underlying trust assets). 

In order to arrive at settlement that would truly put to rest all trust 
management and accounting issues predating September 30, 1995, Congress may 
also want to address all of these other potential claims through what we refer to 
as a "total settlement" approach. A settlement of this type conceivably could 
encompass IIM claims as well. In many respects, developing an equitable 
approach to a total settlement is even more challenging than crafting a resolution 
of Type 3 claims. There has been no methodical analysis of the namre and scope 
of deficiencies, if any, that would be addressed in a total settlement approach, 
although Tribes have long criticized various aspects of the Department's 
management of their assets. 

Moreover, assuming that some type of programmatic settlement is adopted, 
a number of issues arise, including: criteria for panicipation (should participation 
be limited to Tribes whose claims meet specified criteria, or be available to any 
Tribe with Tribal accounts); what form participation would take (e^., if an 
education fund were established, would each Tribe be eligible for a one-time 
payment in a certain amount for educational purposes, or would Tribal members 
be entitled to apply for scholarships); how participation in this component would 



26 . 
Attachment C Part 2 to Boswell Declaration q^j^ 



Case1:06-cv-01897-JR Document 26-13 Filed 08/11/2007 Page 15 of 22 



fit in with the payment of individual Tribe's specific claims (e^., would this 
replace or be in addition to payments to settle specific claims, would there be 
offsets, cumulative limits to the settlement, etc.); what is the relationship between 
access to the benefits of the programmatic settlement and the amount of potential 
claims, a Tribe may have; and the source of funding. 

Yet, the prospect of achieving some degree of finality on trust asset issues 
is attractive for both the Department and Tribes alike. It will allow us to focus on 
prospective reforms that will result in more accurate and productive management 
of Tribal resources. Moreover, a total settlement option could encourage further 
the settlement of claims based on the Project, and senle claims relating to trust 
issues that fall outside the scope or time period of the Project. This approach 
would only be successful, however, if most Tribes agreed to participate in the 
program and specifically agreed to waive ail Tribal trust claims through September 
30, 1995. 

As with Type 3 claims, the Department has not adopted a position on 
whether a total settlement approach is either in the public interest or is workable. 
Moreover, it endorses no particular approach to a total settlement option should 
we decide to recommend a total settlement component. Both matters will be the 
subject of furtiier consultations with the Tribes. However, for purposes of 
discussion and illustration only, we outline several possible approaches for Tribal 
consideration. These generally are intended to advance economic development in 
Indian country and are strucmred to meet the policy objectives of the Tribes 
themselves, rather than those of the government. Moreover, these are not the only 
possible total settlement options. Over the next several months, as we engage in 
Tribal consultations, we will be considering other initiatives that may serve as an 
appropriate mechanism. 

A. Advisory Board Proposal - Development Bank 

One option proposed by the Advisory Board consists of the establishment of 
a development bank for American Indians with certain capital and assurances 
provided by the United States Government. The Advisory Board proposal 
envisions the United States forming and capitalizing a federal Development Bank 
for American Indians to serve as a nationwide financial instimtion providing a 
dependable source of lending to American Indians and Tribes and a dependable 
source of funds for investment in American Indian enterprises. The Advisory 



27 



Attachment C Part 2 to Boswell Declaration 



Case1:06-cv-01897-JR Document 26-13 Filed 08/11/2007 Page 16 of 22 



Board woutd allow all IIJM and Tribal account holders to participate in the Bank, 
in senlemem of all potential claims arising out of the Project not covered by the 
other components of the Advisory Board's settlement proposal, as well as any past 
potential liability for trust management practices in general. Under the Advisory 
Board's approach, the Bank would be panially capitalized by the proceeds of two 
general settlement components for all Tribes with trust accounts, to address all 
unreconciled transactions arising from the Project ($300 million) and some 
potential liability for all reconciled disbursements with incomplete disbursement 
voucher packages ($200 million). Shares would be distributed to all federally 
recognized Tribes on. some equitable basis set forth in the legislation. In total, the 
United States would provide the following capital and guarantees for the Bank: 

Equity Capital - $500 million 

Borrowing Capacity - 10 times equity capital 

guaranteed by U.S. 
Initial Borrowing from U.S. - $3 billion for 30 years 

at 30-year Treasury Rate 



The Bank would provide access to long-term loans and investments for 
economic development and would provide access to low interest rates on loans, 
made possible by the Bank's tax-free status and its access to funding in the 
Nation's capital markets at rates commensurate with those paid by the U.S. 
Government. The Bank would be a for-profit financial instimtion and would not 
receive appropriated funds for operating expenses. It would receive appropriated 
funds for lifeline financial services and other specific programs as approved by 
Congress. The Bank would be authorized to invest up to 25 percent (initially $125 
million) of its permanent capital in eligible Indian businesses and projects. 

The Bank would also be allowed to invest up to $300 million in. the 
purchase, holding, financing and sale of fractionated realty interests in' Indian 
allotted lands. According to the Advisory Board, such purchases and financing 
would be made on "prudential terms" to eligible individuals and Tribes. 
Fractionated heirship activities would be governed by rules in the legislation to 
resolve the fractionated heirship problem, and would be administered to achieve 
the consolidation of existing fractional interests and to prevent or substantially 
reduce future fractionation. The fractionated heirship problem is discussed more 
fully below on pages 30-31. 



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As with any total settlement option, the Advisory Board Development Bank 
proposal would have the advantage of fmally resolving all claims arising out of the 
United States' management of Tribal trust funds (other than those which Tribes 
choose to litigate). The Advisory Board recommends extending the Bank 
settlement option to resolve IIM claims as well. It is unclear whether smaller 
Tribes or individuals would be likely to support or take advantage of the 
Development Bank senlement option; their interests might be bener served by 
providing more direct access to funding for other purposes. It also is unclear 
whether the Advisory Board proposal would provide access to the Development 
Bank to non-Indian IIM account holders. 

There are many unanswered questions about the Advisory Board's proposal 
for a Development Bank, including the relationship between the Bank and non- 
Indian IIM account holders, how membership in the Bank should be determined, 
mechanisms for accountability and control of the Bank and the status of Tribes 
which choose to litigate rather than settle their claims. Moreover, as a general 
policy, the Treasury Depanment strongly opposes Federal entities having authority 
to borrow in the credit markets. In short, the Department has many questions 
about this proposal and, at this point in time, specifically does not endorse it. 
However, the Advisory Board's proposal warrants consideration and has been 
included in this repon to generate additional thought and discussion. 

B. General Program for Trust Resource Management or 
Other Activities 

A second option for a total settlement of claims would be some type of 
general settlement grant or other program providing access to funds for Tribal 
economic development purposes. The terms and conditions for such a program 
would be defined in authorizing legislation and would conform to longstanding 
federal financial policies. The intention would be to provide a source of funding 
for types of initiatives for which no other funding is readily available. 

For example, in settlement of all potential outstanding Tribal trust 
management claims, legislation could establish a permanent or temporary grant or 
other program to provide Tribes with access to financial support for Tribally- 
owned businesses or other Tribal economic development projects. Administration 
of the program could be performed by the Secretary of the Interior, the Attorney 



29 



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General, or other appropriate official. The program could be financed and made 
available to all federally recognized Tribes on an ongoing basis, with criteria 
governing eligibility, appropriate projects, the amount available to each Tribe in 
a given year or time period, total funding available, repayment obligations, etc. 
This approach would provide Tribes with direct access to funding to undenake and 
support American Indian businesses and projects, as opposed to the ability to 
borrow money to pursue these concerns provided in the Advisory Board's 
Development Bank proposal. Alternatively, a fund could be established and claims 
would be made against the fund, with acceptance of payments considered to be in 
full satisfaction of any claims on behalf of a Tribe, similar to die claims procedure 
used in other restitution funds administered by the United States. A Tribe's 
acceptance of such a total settlement proposal would extinguish all of its 
outstanding Tribal trust fund claims. 

C. Fractionated Heirship Land Acquisition Program 

A third option for a total settlement of claims would be an initiative to 
address the fractionated heirship problem, which is a major cause of the difficulties 
in the administration of the BIA's trust fund management systems and BIA's 
inability to obtain more productive returns for the use of trust lands. As noted 
above, the Advisory Board's Development Bank proposal would direct some funds 
toward resolving this issue. It could, however, be addressed in any number of 
ways, with or without the existence of the Bank. 

Fractionated heirship is an indirect result of the 1887 General Allotment Act, 
which directed the division of Tribal lands and allotment of them to individual 
Indians. Allotted or individually-owned trust lands comprise approximately IL 
million acres. As originally envisioned, allotments were to be held in trust by the 
United States for their Indian owners for no longer than 25 years, after which the 
land would be conveyed in fee simple to the Indian owners. Many allottees died 
without wills during the 25-year trust period, and it also became evident that many 
allottees' land continued to need federal trust protection. Consequently, Congress 
enacted limited probate laws and authorized the President to extend the trust period 
for those individuals who were not competent to manage their lands. The 
presumption was, however, that at some point in the then-foreseeable future the 
lands would be conveyed to their Indian owners free of federal restrictions. 
Nevertheless, Congress continued to extend the period of trust protection but did 
not amend the probate laws. Under the Indian probate laws, as individuals died 



30 
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without Wilis, their property descended to their heirs as undivided fractional 
interests in the alJotment. As the years passed, fractionation has expanded 
geometrically to the point where there are hundreds of thousands of tiny fractional 
interests in Indian Trust property . Without action, this problem will become even 
more severe. 

Congress attempted to address the fractionation problem with passage of the 
Indian Land Consolidation Act (ILCA) in 1984. The ILCA authorized the buying, 
selling and trading of fractional interests. Most importandy, it provided for the 
escheat to Tribes of interests of less than 2 percent. Although over 55,000 of the 
2 percent-or-less fractional interests have escheated since 1984, the fractionation 
problem continues to worsen. Maintaining heirship and land records and 
administering the land is inordinately expensive, and the administration of the 
records penaining to the moneys earned by each individual allottee is equally 
expensive and difficult. This is a major cause of the problem with maintaining 
individual Indian trust accounts.'^-' Equally important, utilization and conveyance 
of the fractionated property by the numerous owners is difficult because of the 
need to secure the numerous consents required. 

The Department believes that legislation which would consolidate the large 
number of existing fractionated interests and prevent further fractionation would 
benefit the Tribes by promoting self-determination, and by removing a significant 
obstacle to the efficient administration of Indian trust funds. ^'* The legislation 
would have to specify the criteria for participation, whether the Department would 
commit to buying a certain number of interests for each Tribe, whether there 
would be cumulative limits to the settlement funding, and other issues. The 
fractionated heirship land acquisition proposal could comprise or be a portion of 
a broader total settlement proposal to resolve all Tribal trust fimd claims. 



"^ Over 170,000 IIM accounts-- about 55 percent of all accounts -- have a balance of less than SIO. 

•* We recognize that fractionation is one major cause of the current state of trust funds management. 
In order to prevent further fractionation, it will be necessary to change inheritance laws relating to Indian 
allotments. Currently, however, the constiniiionaJityof the Indian Land Consolidation Act (25 y-S:C^§^206) 
is before the United States Supreme Court in the case of Babbitt v. Youpee . Case No. 95-1595. In Youpee v. 
Babbitt . 67 F.3d 194 (9th Cir. 1995) the appellate coun held that the ILCA violates the right of cenain Indians 
to convey their allotment interests freely. We anticipate that the Supreme Coun's resolution of this case, which 
was argued earlier this month, will provide needed insight into the best means for balancing the need to control 
fraciionaiion with the inheritance rights of individual Indians. 

31 
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D. Consultation 

Because of the complexity of these proposals, the need to generate near 
universal support among Tribes in order for the total settlement approach to be 
successful, and the Administration's policy on government-to-government relations 
with Tribes, the Department believes additional consultation on all these ideas is 
required. The Depanment intends to circulate this analysis to all Tribes and 
interested parties who may have Tribal trust fund claims to solicit their ideas for 
a total settlement initiative and explore their willingness to waive their own claims 
if one were to be implemented. The Depanment will submit a supplemental report 
to the Congress in April 1997, with its findings and additional recommendations. 



VII. OTHER TRUST FUNDS ISSUES 

A. Restoration of Overdraft Interest Clearing Accounts and 
Settlement of Miscellaneous Losses 

There are two additional issues that might be addressed by legislation. 
These issues relate to the restoration of overdraft interest clearing accounts (which 
apply only to IIM accounts) and settlement of miscellaneous losses (which apply 
to both Tribal and IIM accounts). 

In the course of reviewing IIM accounts, GST staff determined that there is 
S42.2 million in unidentified Overdraft Interest Clearing accounts in the detailed 
IIM subsidiary ledger. Overdraft interest clearing accounts are control accounts 
that are used when interest is posted to the underlying individual accounts. When 
interest is credited to the underlying accounts, the control account is debited. 
When interest is funded the control accounts are credited. The amounts debited 
and credited, in theory, should be equal. The current debit balances in these 
accounts are likely the result of either the non-posting of interest in the IIM 
subsidiary ledger that was funded, or interest credited to individual account holders 
in excess of what was acmally earned/funded. Research on these accounts is 
continuing. 

The Advisory Board proposes that $42.2 million be appropriated to restore 
these accounts, as the practical effect of these overdrafts is that current IIM 
account holders are deprived of approximately $2 million in interest income 

32 
Attachment C Part 2 to Boswell Declaration 0582 



Case1:06-cv-01897-JR Document 26-13 Filed 08/11/2007 Page 21 of 22 



annually. This assenion is not entirely accurate, as the total assets actually 
invested in the IIM account pool exceed the balance in the IIM subsidiary ledger. 
The Department agrees that these discrepancies need to investigated, and if 
necessary, rectified. However, ir is not clear at this time how much funding, if 
any, is needed. 

The review also identified $28.3 million in other miscellaneous losses, 
broken down as follows: 

. (millions of dollars) 

Loss and associated interest 51 0.0 
To bring subsidiary (IRMS) and Control 

Account (OMNI) into balance 10.8 

Budget suspense accounts 1.0 

Clean-up remaining General Ledger Accounts 6.5 

Total $28.3 

The Advisory Board proposes that $28.3 million be restored to the IIM accounts. 

Although the Department agrees that these discrepancies need to be rectified, 
it is not clear how much funding is necessary to do so. In some cases, simple 
accounting adjustments might be sufficient. Over the next several months, the 
OST will prepare a detailed analysis of all accounts in the trust fund general ledger 
and subsidiary ledgers which (1) explains how the accounts correspond to the 
acmal underlying assets and liabilities; (2) quantifies the resultant deficiency /equity 
of the trust fund as a whole; and (3) explains the efforts that have been undertaken 
to rectify these variances. The Department also recommends that legislation 
provide general authority to clear trust fund subsidiary and general ledger account 
discrepancies. This authority could be exercised after reports on the namre of the 
discrepancies and descriptions of efforts taken to resolve those discrepancies are 
submitted to and approved by the Office of Management and Budget. 

B. Funding of the Settlement Legislation 



33 



Attachment C Part 2 to Boswell Declaration ^^o-. 



Case1:06-cv-01897-JR Document 26-13 Filed 08/11/2007- Page 22 of 22 



The Advisory Board proposes that claims be paid from the Judgment Fund-" 
although it does not identify a specific reason for this position. 

Any of these proposals would require the government to pay significant 
amounts of money. Some Tribes have pointed out that to the extent that senlement 
would be funded from Departmental funds and scored against the BIA budget, the 
settlement would effectively be funded from programs for which the Tribal 
beneficiaries are otherwise the intended beneficiaries. Tribes with small or no 
trust fund claims also might conclude that they are helping to fund payment of 
claims to other Tribes through the reduction in funding of the programs that are 
intended to benefit them. Tribes with trust funds could also claim that they lost 
twice: initially through the incorrect management of their trust funds, and a 
second time by a reduction in programs and services to the Tribes and their 
members that a reduction in BIA funding would necessarily entail. Moreover, 
some Tribes have pointed out that similar major liability claims against' the 
government, such as those arising from the failure of federally insured savings and 
loan institutions, were not scored against a particular agency. 

If these claims were to be settled through litigation rather than legislation, 
judgments would likely be paid through the Judgment Fund. In enacting settlement 
legislation, we urge that the Congress take steps to ensure that any payments to 
resolve these areas of difference not be made in a manner that would jeopardize 
current levels of service to Tribes and individuals who, collectively, have 
experienced the lowest level of economic recovery of any group in the Nation and 
for whom the government has pledged a special trust relationship emanating from 
treaties and compacts entered into on a government-to-government basis. The 
Department's final recommendations will address a source of funding for the 
settlement. 



^ The Judgment Fund is administered by the Secretary of the Treasury, and is funded by a permanent, 
indefinite appropriation. 

34 
Attachment C Part 2 to Boswell Declaration 0584 



Case 1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 1 of 29 



ATTACHMENT C 



TO BOSWELL 



DECLARATION 



PART 3 



Case 1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 2 of 29 



Advisory Board Prop osals In Response to T ribal Tnist FimH 

Reconciliation Proj ect 



Attachment C Part 3 to Boswell Declaration 0585 



Case 1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 3 of 29 



PROPOSED LEGISLATION 

IN RESPONSE TO TRIB.AX TRUST FLINT) RECONCILUTION RESULTS 

AM) TO ADDRESS SOLUTIONS TO THE \LAJOR TRUST MANAGEMENT 

PROBLEMS 

INTRODUCTION AND PURPOSE 

This paper presents a proposal for legislation in response to the Bureau of Indian Affairs' 
(BIA) Tribal Trust Fund Reconciliation Project (Reconciliation Project), to major problems 
affecting American Indian trust management and to the statutory requirements of the American 
Indian Trust Fund Management Reform Act of 1994 (Reform Act of 1994). 

The Reform Act of 1994 provides that the Secretary of the Interior (Secretary) shall 
prepare a repon which must include a description of the procedures used for reconciliation of the 
Tribal trust fund accounts and a statement outlining efforts the Secretary will undertake to 
resolve disputes regarding Tribal account balances arising out of the Tribal trust fund 
reconciliation process. The Secretary provided an interim report to Congress on May 31,1 996, 

As the Secretary's Report indicates, commencing in January 1996, each tribal account 
holder was provided a report on the reconciliation of its accounts along with account statements 
that show accotmt balances, reconciled transactions, and proposed adjustments. Subsequent to 
the distribution of the reconciliation report and account statements, a national meeting, to which 
all account holders were invited, was held in Albuquerque, New Mexico, to explain the 
reconciliation methodology and the report and account statement format, content and 
terminology. A series of five (5) regional meetings were also scheduled during the spring and 
summer of 1996 to work directly with each account holder to address questions and issues on its 
specific report and account statements. 

Through April 30, 1996, seventy-seven (77) of the 280 tribes involved in the 
reconciliadon project have responded. Specifically, two (2) account holders have accepted and 
three (3) account holders have disputed their account balances. Because by the end of May all of 
the scheduled meetings had not been held to receive and discuss account holder issues and 
comments and since many account holders had not communicated their acceptance or dispute of 
their account balances, only an interim report on the account holders' attestations was provided 
in the Secretary's Report. The Department of the Interior (Department) testified in June that it 
will be in a position to propose a mechanism to resolve any disputes sometime during the fall of 
1 996 euid that a final report on account holder attestations and a mechanism to resolve any 
disputes will be submitted to the Congress by November 15, 1996. The mechanism to resolve 
any disputes will almost certainly take the fonn of proposed legislation. Legislation would 
provide an orderly and efficient mechanism for resolution of the disputes over account balances 
arising out of the Tribal trust fund account reconciliation process, would respond to the statutory 
directive that the Secretary outline efforts to resolve such disputes and because claims arising out 
of the Reconciliation Project will probably substantially exceed the Department's financial 
resources. 



Attachment C Part 3 to Boswell Declaration 0586 



Case 1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 4 of 29 



Need for a Comprehensive Settlement and Solution to Trust Management Problems 

This proposal presents a comprehensive set of settlements and initiatives which are 
designed to compensate .American Indian trast beneficiaries for damages from past trust 
management practices and assure an accurate and timely accounting to trust account holders in 
the future. 

In October 1 995 the Office of the Special Trustee for American Indians (OST) 
commenced an assessment of the U. S. Government's trust management policies, procedures, 
practices and systems as they apply to individual American Indian and American Indian tribal 
accounts. 

By February 1996 the OST completed the preliminary assessment and produced a 
conceptual Strategic Plan to acquire and instimtionalize specified systems. Implementation of 
this plan will permit and ensure that the U. S. Government establishes appropriate policies and 
procedures, develops necessary systems and takes the affirmative actions necessary to provide an 
accurate and timely accounting to American Indian trust beneficiaries. In this manner the proper 
discharge of the Secretary's trust responsibilities finally can be accomplished. The Assessment 
and Phase I of the Strategic Plan are attached in a document entitled "Special Trustee for 
American Indians, Assessment and Strategic Plan Principles, Phase I, February 1996" (Special 
Trustee's Assessment or Special Trustee's Strategic Plan). 

In December 1 995 the Department's Bureau of Indian Affairs (BIA) substantially 
completed a multi-year "Tribal Trust Funds Reconciliation Project" (Reconciliation Project) and 
issued an "Agreed-Upon Procedures and Findings Repon" for the period July 1, 1972 through 
September 30, 1992. 

In August 1995 the Department substantially completed a study of the trust management 
systems relating to Individual Indian Monies (HM) accounts and issued a report entitled "EM 
Related Systems Improvement Project Report." The findings of this report are substantially 
incorporated in the Special Trustee's Assessment. 

The Special Trustee's Assessment, the Reconciliation Project reports, the HM Related 
System Improvement Project Report and earlier reports issued by the General Accounting Office 
all confirm that the U. S. Government's trust management systems, policies, procedures and 
practices coupled with the condition of the trust records and, notably, large numbers of missing 
documents, effectively prevent: 

1 . a proper, accurate and timely accounting for trust account balances, collections, 
disbursements and investments and the maximization of the return on investments. 

2. the preparation of accurate and timely reports to trust account holders regarding all 
collections, disbursements, investments and return on investments. 



Attachment C Part 3 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-14 Filed 08/11/2007' Page 5 of 29 



3. an audit under generally accepted auditing standards. 

4. any fiirther reconciliation efforts, since the costs of such efforts would substantiallv 
exceed the benefits and at the same time would probably yield unsatisfactory and 
inconclusive results. 

The past and present undeniably poor quality of the trust management systems, the 
condition of the historical records and the U. S. Government's inability to provide an accurate 
and timely accounting prevent any reasonably accurate determination of the extent of harm, 
damage or loss to American Indian trust beneficiaries. For example, the Reconciliation Project 
disclosed there were no records located to support $2.4 billion out of $17.7 billion for the twenty 
year period (1972 - 1992) for one category of transactions (non-investment transactions). In 
addition, it appears that the condition of the records and the quality of the trust management 
systems were much worse for periods prior to 1972. Therefore, it is reasonable to assume that 
several billion dollars more in uidocated documents and substantially more harm, damage and 
loss would have been disclosed had a flill reconciliation or full accounting been possible for 
periods prior to 1972. 

It is undeniable that some compensation is due the American Indian account beneficiaries 
for the U. S. Government's inability to provide an accurate and timely accounting and such 
compensation could be justified in the billions of dollars. But, even if the damages could be 
reasonably estimated, there would remain the question of which American Indians were harmed 
and damaged? There is no complete answer to that question and since there is not, any 
settlement of claims, present and prospective, arising out of the U. S. Government's inability to 
render an accurate and timely accounting or the Reconciliation Project or both, necessarily must 
start with the settlement of known and quantifiable harm, damage and loss and proceed to a 
subjective, common sense settlement process for the other harm, damage and loss which may 
have accrued to trust account holders over many, many years. 

Any settlement process would also be inadequate unless it addressed the root causes of 
the Government's inability to provide an accurate and timely accounting to Americafflndiari trust 
beneficiaries. That is why the Special Trustee's Strategic Plan is an integral part of the 
settlement process. Implementation of this plan will ensure that the U. S. Government 
establishes appropriate policies and procedures, develops necessary systems and takes the 
affirmative actions necessary to provide an accurate and timely accounting to American Indian 
trust beneficiaries in the future. In this maimer the proper discharge of the Secretary's trust 
responsibilities finally can be accomplished. 

Consistent with the general approach just described, the following pages describe specific 
settlement terms and amounts, the criteria to be used and the rationale for each general 
settlement. 



Attachment C Part 3 to Boswell Declaration Q^^g 



Case 1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 6 of 29 



II. BACKGROLTSD 

The Secretarv- of the Interior has been designated by Congress as the trustee of the funds 
held by the federal government for Indian Tribes and individual American Indians. Therefore, 
the Secretary has a responsibiliry to ensure tlie proper accounting, investment and financiaJ 
reponing of approximately 300,000 Tribal and lEM trust accounts. 

Accordingly, the Department of the Interior through the Bureau of Indian Affairs and the 
Office of the Special Trustee for American Indians has a responsibility to ensure that the trust 
accounts are properiy maintained and invested in accordance with applicable laws, and that 
accurate and complete accountings and reports are periodically provided to fund owners. 

Over the past decade, operational reviews and ftnanciaJ audits have identified weaknesses 
in the control and oversight of Indian trust funds. A primary concern was the failure to reconcile 
the trust fund accounts regularly. Accordingly, in 1988, 1989 and 1990, Congress directed BIA 
to take steps to reconcile Indian trust fund accounts as accurately as possible back to the earliest 
practical date. The FY 1990 appropriations language further specified the requirement that "the 
results of such reconciliation have been certified by an independent party as the most complete 
reconciliation of such funds as possible." 

Pursuant to these directives, BIA commenced its reconciliation project in 1990. In the 
fall of 1990, an ad hoc Tribal advisory group worked in conjunction with the General 
Accounting OfBce (GAG) and the Department's Inspector General to develop a request for 
proposal for the reconciliation contract. In May 1991, the contract was awarded to a national 
accounting firm, Arthur Andersen, L.L.P. The ad hoc group constituted itself as the Intertribal 
Monitoring Association (ITMA). 

Phase I of the contract was intended to determine what records were available, what 
procedures would be necessary, and what was the cost of a complete reconciliation for both the 
Tribal trust and EM accounts. This work was performed from June 1991 through January 1992. 
The results of Phase I disclosed that all supporting documents could liot be located, but to the 
extent they could.be located, they could be examined, -Becauscsome-records could not be 
located, it was resolved that an audit would not produce meaningful results. 

In view of this, the Department of the Interior, in consultation with the Office of 
Management and Budget (OMB) and ITMA, considered alternative methodologies and 
approaches with the goal of producing as accurate an accounting as practicable. As a result, the 
BIA modified the Arthur Andersen contract to incorporate the agreed-upon procedures 
methodology, which does not constitute an audit in accordance with generally accepted auditing 
standards but was used to reconcile the Tribal trust fiind accounts back to 1973. 

TTie Reconciliation Project did not address UM accounts because it was determined that a 
similar reconciliation effort for EM accounts would cost $108 to $281 million. 



Attachment C Part 3 to Boswell Declaration 0589 



Case 1:06-cv-01897-JR Documeht 26-14 Filed 08/11/2007 Page 7 of 29 



In accord v,iih the Congressional mandate that the Tribal trust reconciliation be certified 
by an independent third pajt\', the BLA awarded a contract to perform the cenificacion to Coopers 
and Lybrand in September 1993. Due to difficulties with the contractor and a proiected cost for 
completion of the cenincation that far exceeded initial estimates. BL\ terminated the contract in 
October 1995, before the cenification was completed. At BlA's request. Coopers and Lybrand 
provided a close-out letter summarizing the work performed prior to termination. In the lener, 
Coopers states that it noted errors in certain aspects of Arthur .Andersen's reconciliation work 
under the BIA contract, and that some but not all of these errors were reported to Arthur 
.Andersen and BIA. The lener further states, however, that no conclusions can be drawn &om the 
preliminary information reponed because Coopers did not complete the certification work or 
finalize the results. 

While the BIA reconciliation efforts were ongoing, in 1994, Congress passed the 
American Indian Trust Fund Management Reform Act, 25 U.S.C. 4001-4061, which established 
the Office of the Special Trustee for American Indians. The Special Trustee, who reports 
directly to the Secretary, is responsible for oversight, reform, and coordination of the policies, 
procedures, systems and practices used by various Departmental agencies in managing Indian 
trust monies. The statute also required that the Secretary transmit to Congress by May 31,1 996, 
a report that describes the methodology and results of the trust fund reconciliation process, 
includes Tribal attestations as to disputed account balances, and outlines efforts the Secretary 
will undertake to resolve such disputes. 

In January 1 996, OTFM released to approximately 280 Tribes a report summarizing the 
results of its Tribal Trust Funds Reconciliation Project. The agreed-upon procedures used in the 
reconciliation were intended to accomplish the following: (1) verify that financial transactions 
posted to the accounting records are in agreement with the originating lease or sale agreements, 
permits, or contract terms (not completed for all transactions); (2) determine the timeliness of the 
deposit of receipts (for informational purposes only); (3) verify that non-investment financial 
transactions posted to the BlA's official accounting records are in agreement with supporting 
financial source documents; (4) assess the reasonableness of investment income posted to Tribal 
accounts; (5) assess the reasonableness of U.S. Treasury interest calculations; and (6) reconcile 
accounting systems and general ledger balances with U.S. Treasury balances. The report 
indicated that there were some $2.4 billion in unreconciled non-investment transactions 
(transactions for which supporting financial source documents cannot be located). The 
procedures and the proposed adjustments to account balances are detailed in the Reconciliation 
Report, and were explained to the Tribes at a national meeting on February 14 and 15 in 
Albuquerque, New Mexico. More detailed follow-up was provided at a series of regional 
meetings with individual Tribes. 

As noted, the Department has indicated it will be in a position to propose a mechanism to 
resolve any disputes sometime during the fall of 1 996 and that a fmal report on account holder 
attestations and a mechanism to resolve any disputes will be submitted to the Congress by 
November 15, 1996. 



5 

0590 
Attachment C Part 3 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 8 of 29 



m. T\TES OF CL.AJMS AND SETTLEMENTS 

For purposes of this paper, the two basic ty-pcs of potential claims that may arise from the 
Reconciliation Project or otherwise are referred to as Type 1 or Type 2 claims. 

Type 1 claims are claims based on exceptions or errors for which the government has 
adequate documentation and agrees that either funds are owed to a Tribal account or that funds 
are owed from a Tribal account to the government. These claims are described in the 
Reconciliation Project Reports or otherwise as set forth in the legislation. 

Type 1 claims also include claims where a Tribe disputes its account balance from 
reconciliation and brings a claim which can be negotiated, mediated or arbitrated. These claims 
can be based on additional documentation produced by the Tribe or the government in 
addressing Reconciliation Project issues, other claims of a similar nature or certain reconciled 
disbursement transactions without complete disbursement packages which can be quantified to 
some extent and exarruned for reasonableness. 

Type 2 claims are claims arising from all other circumstances and include unreconciled 
transactions, where neither the Tribe nor BIA can locate adequate source documentation to 
support the account transactions or balance or to support a conclusion that those transactions or 
balances are in error. Type 2 claims would address not only those claims arising from BlA's 
Tribal trust fund reconciliation, but would include claims and settlement amounts arising from 
other trust management issues that need to be addressed and resolved. These include claims 
arising from the DM accounts for ail periods up to settlement and from the Tribal accounts 
outside the 20-year tribal reconciliation period, as well as issues pertaining to the Department's 
existing trust management practices and the OSTs reform efforts. 

Settlements involve payment for both specific and general claims and deficiencies. 
Settlement proceeds include direct distribution to Tribes or IIM account holders where specific 
settlements can be reasonably supported based on the facmal siuiation. Where damages cannot 
be reasonably estimated for particular individuals or Tribes, settlement proceeds are distributed 
to remedy trust management deficiencies or to provide for other initiatives which will benefit 
substantially all trust beneficiaries. 

IV. PROPOSALS FOR SETTLEMEPO" OF SPECIFIC CLAIMS 
A. General Framework 

The general fi-amework for resolution of claims arising from the reconciliation must be 
legislative. The legislative options described below would provide for the expedited payment of 
claims from the Judgment Fund or otherwise as specified for particular settlements. 

All agreed Type I claims would be paid in fiill with interest, and with forgiveness of any 
amounts that may be owed by Tribes, and without regard to the settlement of Type 2 or any other 



Attachment C Part 3 to Boswell Declaration Q59J 



Case 1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 9 of 29 



claims. Pay-mems would be made promptly after the legislation takes effect in accordance with 
procedures and guidelines set fonh in the legislation. 

Tv-pe 2 claims would be settled and paid based on specific and general settlements and 
guidelines set by the legislation. 

Tribes that settled their Type 2 claims pursuant to the legislative procedure would waive 
all claims related to Tribal trust funds administered by the BIA for the period prior to September 
30, 1995. Account balances, adjusted by the agreed claim amounts, would be accepted as of 
September 30, 1995 and would be used as the basis for future accountings. The government 
subsequently would not be required to perform further accountings or reconciliation exercises for 
periods prior to September 30, 1995. Nor would the government be liable for past damages 
arising from trust management practices prior to September 30, 1995. Tribes that did not resolve 
their claims pursuant to the legislative procedure would be able to bring their claims in court, 
consistent with certain parameters for those claims set out in the legislation but would not be 
able to participate in the Type 2 settlements. Settlement for EM damages or losses would be as 
of a certain date specified in the legislation with IIM balances deemed to be accepted as accurate 
as of that date. Such a date would be used as a basis for future accountings. 

B. Detailed Discussion of Proposed Settlement for Legislation 

It is clear from an examination of existing authorities regarding settlement of claims, 
forgiveness and ofifset of claims, payment of interest and available fiinding that a legislative 
solution is necessary to address Tribal claims arising from the reconciliation results and other 
trust management issues. The following framework should be considered to settle the two types 
of Tribal claims: 

General Payment Policies 

Payment of All Agreed Claims. All agreed claims will be settled under policies and 
guidelines where the government agrees to pay specific settlement amounts to the Tribes. 
These include all Proposed and Scoped Adjustments. Roll-forward Adjustments and 
interest on deposits due to lag times between collection and deposit as set forth in the 
Reconciliation Project Reports. Other agreed Type 1 claims which have been settled.by 
negotiation, mediation or arbitration will also be paid directly to the Tribes. Also 
included will be specific payments to beneficiaries with unreconciled disbursements as 
set forth in the legislation. All agreed settled claims should be paid promptly within a 
specified period of time set forth in the legislation. The government would pay the Tribe 
■ any principal amounts owed, plus interest, compounded from the date of the error to the 
date the payment is made or otherwise as set forth in legislation. 

Interest Policy. There are various ways to compute interest. The fairest method with 
parallels in the private sector would determine interest payments by computing 
compound interest at a blended Tribal benchmark rate. This interest paymerit would be 



Attachment C Part 3 to Boswell Declaration 0592 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 10 of 29 



greater than what a tribe could likely recover in coun. because the couns have limited the 
interest amount on tnis: funds to simple interest on principal only, and because the Tribal 
benchmark rate is skewed somewhat by a number of long-term instruments held by one 
tribe. Other market indexed rates may also be used for certain time periods and in' 
paTuicular circumstances. 

Forgiveness Policy. The reconciliation results indicate that in some cases errors resulted 
in overpayments or enroneous payments to a tribe or a particular Tribal account. One 
option is to require tribes to reimburse BIA for amounts erroneously credited to their 
accounts, with or without interest. However, forgiveness of the entire amount is 
proposed for the following reasons; 

A. These are known and admitted errors of the U. S. Government. Even though 
the tribes apparently benefitted by these overpayments, they should not be asked 
to repay amounts which arose out of the U. S. Government's inability to provide 
an accurate and timely accounting to tribal trust account beneficiaries. 

B. These admitted errors were made over twenty years. The usual and customary 
standards for clearing similar exception items in the private sector is one 
accounting period, usually ninety days or less. After ninety days, private trust 
companies usually do not charge their customers for errors committed by the trust 
companies even though the customers may have benefitted fi-om such errors. The 
U. S. Government should not adopt a lower standard for itself by seeking 
restimtion fi-om the ttibes for these overpayments. 

C. The overpayments were identified reconciled items, only. Had a full 
accounting been possible for the over $2.4 billion in unreconciled non-investment 
transactions (documentation which could not be located), or had a full accounting 
been possible in verifying financial transactions to source documents (such as 
land leases and contracts), or had the Reconciliation Project covered different 
time periods, the net results for particular tribes might have been different. Errors 
such as overpayments for particular tribes might have been oflfset in whole or in 
part by errors resulting in amounts due to the same tribes had a full accounting 
been possible or had the Reconciliation Project used different time frames. 

D. Overpayments or other exceptions resulting in an amount due fi-om tribes 
were not researched fully to determine whether a subsequent correcting entry was 
made by the BIA. Tribes should not be asked to reimburse the government for 
these amounts unless the government can document that no subsequent correcting 
entry was made. 



0593 
Attachment C Part 3 to Boswell Declaration 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 11 of 29 



Given the conditions which have prevented the U. S. Government from rendering an 
accurate and timely accounting, the U. S. Government should not seek restitution for 
admitted errors which apparently benefited certain tntst beneficiaries which are based on 
results from a Reconciliation Project with undeniable shortcomings. 

No appropriated money will be required for this settlement. 

Netting Policy. A significant policy consideration that would affect any of the 
settlement options described above is how the Department should account for amounts 
owed to a tribe based on the reconciliation results for one or more accounts versi:is 
amounts due the United States based on the reconciliation results of one or more different 
accounts of the same tribe. 

Under a no-netting approach, the Department would forgive all amounts that were 
overpaid to tribes and pay all amounts owed to Tribes plus interest. This approach would 
require the greatest amount of funds to pay claims. 

Under a netting to the tribal level approach, adjustments for all accounts of the same tribe 
would be netted against each other to arrive at the net amount due to or owed by a tribe. 
While the least costly approach from the government's point of view, this approach has 
the distinct disadvantage of netting accounts which may have been set up with a specific 
purpose in mind (e.g., general tribal funds and judgment funds) or which benefit a 
specific class of beneficiaries (e.g., all tribal members, specific tribal members, minors) 
against accounts of ±e same tribe with a diflferent purpose or which benefit a different 
class of beneficiary. 

The proposed approach would net all amounts owed to a tribe against all amounts due 
from a tribe for each account of the tribe, but would not net adjustments for all accounts 
of the same tribe against each other. This is obviously the fairest way to proceed in 
arriving at the net amount due to or owed by a tribe. 

Waiver/Review, Tribes that accept payment of Type 2 claims under this setdement 
process would waive bringing any further claims as part of any subsequent litigation. 

Funding/Cost All claims should be paid from the Judgment Fund. 

1. Payment of Type 1 Claims 

Type 1 claims are those where the Department agrees to a specific settlement amount. 
These include all Proposed and Scoped Adjustments. Roll-forward Adjustments and interest on 
deposits due to lag times between collection and deposit as set forth in the Reconciliation Project 
Reports. Because the government has an obligation to correct its known errors, all such claims 
should be paid promptly within a specified period of time as set forth in legislation. The 
government would pay the tribe any principal amounts owed, plus compounded interest from the 



Attachment C Part 3 to Boswell Declaration 0594 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 12 of 29 



date of the error to the date the pavment is made or othervr-ise as set forth in legislation. The 
follov<.ing is a summar\' and estimate of Tvpe 1 claims and senlement estimates. In accordance 
with the general policy Type I claims due from tribes would be forgiven. 



10 



Attachment C Part 3 to Boswell Declaration 0595 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 13 of 29 



Type 1 Settlement Category 



Type ! Claims 

Settlement Estimate 

(S millions) 



Principal Interest Total 



1-1. Due From Tribes: Forgiven 

1-1 A. Proposed Adjustments 
I -IB. Rollover Amounts 
Total Forgiven 

Note: Total Forgiven amount does not require 
appropriations or payment from the 
Judgment Fund. 

1-2. Due to Tribes 



11.6 
26.1 
37.7 



11.6 
16.9 



23.2 
143.0 



128.5 166.2 



1-2A. Proposed Adjustments 
1-2B. Rollover Amounts 
Sub- total 

1-2C. Interest on Deposits Due to Lag Times 
Between Collection and Deposit (BIA) 

1-2D. Interest on Deposits Due to Lag Times 
Between Deposit at Treastiry and Credit 
to Account of Beneficiary (MMS) 

Sub-Total Due to Tribes under Settlement 1-2 



10.6 

17.5 
28.1 



14.5 

92.1 

106.6 



8.2 



.5 



25.1 
109.6 

134.7 



8.2 



.5 



28.1 



115.3 143.4 



11 



Attachment C Part 3 to Boswell Declaration 



05% 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 14 of 29 



2. Evaluation and Payment of Type 1 Claims Resulting From Disputes 

Evaluation/Guidelines and Payment of Agreed Claims. The Department would 
evaluate any T>pe 1 claims where the tribe disputes the account balance. The Tribe would be 
required to initiate a claim based on additional Tribal documentation the tribes may have. To the 
extent practical such documentation should be pursuant to the reconciliation standards employed 
by Arthur Andersen in the Reconciliation Project. Claims could also be initiated based on an' 
analysis of reconciled disbursements without complete disbursement voucher packages. Type 1 
claims could include challenges to "Passed Adjusunents" contained Ln the Reconciliation 
Project Reports and other challenges to the Reconciliation Report findings. 

The Department shall negotiate in good faith with any account holder who initiates a 
Type I claim in an attempt to reach agreement on the account balance and any adjustments prior 
to a mediator being appointed. If agreement is reached, the agreed claim would be settled under 
the general payment policies and procedures for Type I claims, including interest, forgiveness, 
netting, funding, etc., as set forth above. 

Negotiation/Mediation/Arbitration. The Department shall enter into mediation with 
any account holder who disputes the balance of the account holder's account as reconciled and 
reported in the Reconciliation Report and any other Type 1 claim. The Department shall 
negotiate in good faith with the account holder to reach agreement on the balance of the account 
holder's account. Negotiating sessions may take place at any site agreed upon by both the 
Department and the account holder. If agreement cannot be reached within a reasonable period 
of time, upon notification fi-om the Department, the Director of the Federal Mediation and 
Conciliation Service shall appoint a mediator to mediate the dispute. The time and frequency of 
negotiating sessions shall be determined by agreement of the Department, the account holder, 
and the mediator. Six months from the date mediation commences, the Department shall record, 
and the account holder and any other party of interest shall accept, as the balance accurate as of 
September 30, 1995, for any accounts submitted to negotiations under mediation, the account 
balance reported by the Secretary to the Congress in the Reconciliation Repon under section 
304 of Public Law 103-412, 108 Stat. 4239, 4248 (1994), unless: 

1 . The Department and the account holder enter into an agreement, prior to that date, 
stipulating the correct balance of the account and any agreed adjustments to the account; 
or 

2. The account holder or his agent, prior to or on that date, notifies the Department and 
the mediator that he has decided to submit the dispute to binding arbitration for resolution 
or has decided to litigate the matter. 

If binding arbitration is chosen, both the Department and the account holder must agree 
to it. The Department must not imreasonably withhold its consent to binding arbitration. Any 
arbitration proceeding shall be conducted by a panel of three arbitrators under rules established 
by legislation. 

12 



Attachment C Part 3 to Boswell Declaration 



Case 1 :06-cv-01897-JR Document 26-14 Filed 08/1 1/2007 Page 15 of 29 



The panel of arbitrators, in resolving an account holder's dispute, shall decide the 
appropriate balance of the account holder's account, and shall award amounts to either part>- as 
necessary to adjust the balance of the account holder's account. Awards may be limited by 
type, by aggregate amount, by individual tribe or otherwise as set forth by the Congress in 
legiblation. Any payment to. the account holder by the United States as a result of the decision 
shall be paid from the Judgment Fund and may be enforced by a federal district court. 

The government should pay the expenses of mediation and arbitration for both parties 
under terms and conditions set forth in the legislation. 

Treatment and Limitations on Claims based on Reconciled Disbursements Without 
Complete Disbursement Voucher Packages 

The Reconciliation Project Reports sent to each tribe contains a summary of the basic 
reconciliation disbursement transaction results for each tribe. Codes were assigned to reconciled 
disbursement transactions indicating the level of supporting documentation. In the aggregate 
approximately $6,035 million were categorized as "Reconciled" transactions. Of this amount, 
only $1,925 million were in the category in which the complete disbursement voucher package 
was reconciled. $4, 110 million involved reconciled transactions with incomplete disbursement 
voucher packages. Some of these incomplete disbursement packages may not constitute "proof 
of payment" as that term is understood in the private sector. As a result claims may be pursued 
by individual tribes seeking restimtion for these poorly docimiented transactions. Because some 
degree of proof of payment exists and because the tribes now have access to the images and the 
documentation for all these transactions, the burden of bringing a claim should fall on the tribes. 
Inaddition, most of these transactions are supported by at least one valid authorization. The 
probability that the tribes suffered a loss or other damage from these incomplete disbursement 
voucher packages, while significant, is most likely less than 10%. 

An aggregate settlement of $400 million seems appropriate. This is approximately 10% 
of the $4,1 10 million in reconciled transactions with incomplete disbursement packages. In 
addition, if an accounting were ordered to establish "proof of payment" for all reconciled 
transactions without complete disbursements packages, the government might have to spend 
similar amounts in the accounting alone. It is proposed that $200 million be earmarked as a 
general Type 2 claim settlement with the proceeds to be used as part of the initial capital of the 
development bank proposed as part of the Type 2-7A claims settlement proposal. $200 million 
should be earmarked to satisfy any individual claims brought by Tribes based on these 
transactions. Individual awards to a Tribe agreed to by the Department or compelled by the 
Arbitration process for Type 1 claims of this nature should be limited to no more than 5% of the 
total reconciled transactions with incomplete disbursement packages for that Tribe. 

Timing. Evaluation of Type 1 claims would occur simultaneously with calculation of the 
Type 1 settlement amount, so that if a tribe presented adequate documentation to merit an agreed 
adjustment, that adjustment and other Type 1 claims could be included as part of the settlement 
of its Type I claims. However, payment of agreed Type 1 claims should not be delayed for 

13 -" 



Attachment C Part 3 to Boswell Declaration 0598 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 16 of 29 



those tribes choosing to bring a claim under the procedures established for other T>pe I claims. 

In keeping u-ith general policy. T>pe 1 claims due from tribes for Passed Adjustments would be 
forgiven. 

The following table is a summary of Type 1 Claims and Settlements arising from 
disputes. 



14 



Attachment C Part 3 to Boswell Declaration 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 17 of 29 



Type 1 Claims 

Settlement Estimate 

(S millions) 



T:.pc I Settlement Categor> 

1-3. Due From Tribes: Forgiven 

Passed Adjustments: 
Principal 
Interest 
Total 
1-4. Due To Tribes: 

Passed Adjustments: 
Principal 
Interest 
Total 



Principal Interest Tcul 



7.6 
25.4 
33.0 



3.4 
9.1 



1-5. Disputed Claims Based on Additional Tribal Documentation 
and Due To Tribes Based on Negotiation, Mediation and 
Arbitration 

1-6. Reconciled Disbursements with Incomplete 
Disbursement Voucher Packages 

1-6A. General Settlement of all potential liability for all reconciled 
disbursements with incomplete disbursement voucher packages. 
Proceeds will be used to capitalize partially the Development 
Bank (See Settlement 2-7). 

! -6B. Reconciled Disbursements with Incomplete Disbursement 
Voucher Packages and Due To Tribes Based on Negotiation, 
Mediation and Arbitration. 



(1) 



(1) 



(1) 



(1) 



(1) (1) 



200 



Principal 
Total Type 2 Exposure 



4,110 



(\)&(2) (\)&(2) 200 
(1)&(2) (1)&(2) -400 



(1) None unless tribes dispute the account balance and bring successful action and receive settlements 
based on negotiation, mediation or arbitration. 

(2) It is proposed that the legislation cap the potential liability for Type I-6B claims at S200 million. 
Individual awards to a tribe will be capped at 5% of the total reconciled transactions with incomplete 
disbursement packages for that tribe. The unused portion of the S200 million pool will be used to pay 
other Type 1 claims with any remaining balance reverting to the U. S. Treasury. General Settlement 1-6A 
for $200 million will be used to capitalize the development bank described in Settlement 2-7. 



15 



Attachment C Part 3 to Boswell Declaration 



0600 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 18 of 29 



3. Settlement of Type 2 Claims 

There are two approaches to settlement of Type 2 claims. Under the first approach, an 
amount would be paid that reflects a Congressionally-detennined amount for the specific T>pe 2 
claims described below. A second approach provides for a general seniement of Type 2 claims 
with all or most DM account holders and Tribes for all other covered issues and claims defined 
in the legislation. 

The following section discusses the rationale and the terms and conditions for each 
proposed settlement of Type 2 claims. 



16 
Attachment C Part 3 to Boswell Declaration q^q. 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 19 of 29 



SPECIFIC TVTE 2 CLAIMS SETTLEMENTS 
Type 2-1: IIM Account Holders Settlement Proposal 

Settlement 2-1: 1. S281 million 

2. Tax Free Status for IIM Accounts 

This amount of money would be used to compensate EM account beneficiaries for any 
hann, damage or loss arising out of the government's inability to provide an accurate and timely 
accounting to IIM trust account holders. 

Rationale: 

A full discussion and assessment of IIM trust management systems are contained in the 
report entitled "IIM Related Systems Improvement Project Report" and in the Special Trustee's 
Assessment. Generally, both reports point to: 

1 . the poor condition of the UM data bases and the lack of integrated and adequate " 
systems. 

2: the dependence on outdated manual systems and inconsistent automated systems. 

3. the lack of documentation supporting subjective management decisions. 

4. failures to address adequately large and unacceptable numbers of suspense items; 
accounting and reconciling errors and exceptions; accounts with no address or an 
incorrect address; duplicate accounts; retention of funds for minors over 18 years of age; 
dormant special accounts; and undistributed closed estates. 

5. poor internal controls and inconsistent policies and practices. 

6. a lack of appropriate audit trails. 

7. an inability to trace deposits and collections to source documents. 

8. large numbers of missing documents. 

9. systems and processes which are not capable of establishing up-to-date and 
accurate land title records, necessary to the lease management process. 



10. no accoiints receivable system to assure that all income due is collected or that it is 
collected in a timely manner. 

1 1 . an organizational alignment which is ineffective at times. 



17 
Attachment C Part 3 to Boswell Declaration 0602 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 20 of 29 

The following Table is illustrative of u,- .>pe ar.d depth of problems affecting IIM trust manasement: 



#: 



4. 
5. 
6. 



IIM Exposure 

Balance as of 2/96 
1 . Problen\s 
A 



No. 
Accts ■ 

30a, QOO 



34,921 accounts withouc a known address 
Whereabouts Unknown over 7 years 

B. 15,23 accounts for former minors over 21 

C. Overdraft Interest Clearing Accounts 

(Non-earning assets which deprive current IIM 
account holders of over $2 tnillion annually) , 
as of 8/29/96. 

D. 1,493 closed estates not distributed to 
heirs over 4 years 

E. 55* of accounts (170,252) have balance 
less than $10 which are maintained 

at significant cost to taxpayer. 

F. 36,917 accounts have had no activity 
during last eighteen months and are 
maintained at significant cost to taxpayer. 

G. At OTFM there are $28.3 million in general ledger 
differences, suspense differences, balancing 
differences, overdraft losses and miscellaneous 
losses which have not been cleared, as of 8/29/96. 



Liability 
Principal 

5509 million 



S 44.9 million 
$ 7.8 million 



S-XDOsure 



Unicnown 
Urikxiown 



$21.8 million Unknown 

$42.2 million $2raillian/yr 
$0,419 million Unknown 

Taxpayer Cost 

Taxpayer Cost 

$28.3' million 



Interest owed to IIM account holders for 1980 's thrift losses $13 million 

Cost to reconcile IIM accounts : Contractor ' s 1992 estimate : $108 to $281 million 

Risk of court ordered accounting/reconciliation 

Past IMPL exposure 

Other : 

Missing Social Security Numbers 

Overdrafts IIM 

Special Deposit Accounts 

Special Deposit Accounts Balance 

Special Deposit Overdrafts 

Special Deposits - No Activity last 2 yrs 

J Accounts over 18 

J Accounts over 21 

Whereabouts UnJcnown: 
$0 Balance 
$0 to SO 

50 to 100 

100 to 1,000 

1,000 to 5,000 

Over $5, 00 



inciliat 


:ion 




Unknown 
Unknown 




130,833 


$174,975,472 






300 


319,358 






2S,087 


135,987,085 






9,954 








45 


120,786 




yrs. 


5,245 


2,149,707 






23,494 


25,563,216 






15,236 


21,842,120 


• 




4,286 









26,066 ■ 


381,100 






4,409 


322,013 






14,382 


5,749,547 






3,982 


8,536,362 






1,785 


30,004,307 




_. 









Attachment C Part 3 tp^Boswell Declaration 



0603 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 21 of 29 



Trust management system deficiencies and the poor condition of the records prevent a proper, 
accurate and timely accounting of EM account balances, collections, deposits, disbursements, 
investments and rerum on investments. 

Further, to conduct a reconciliation of the HM accounts similar to that undertaken for tribal 
accounts during the recently completed Reconciliation Project would require between SI 08 million 
and S2$l million according to estimates made by the Reconciliation Project primary contractor in 
1992. This compares to approximately $20 million which was spent for the twenty year tribal 
Reconciliation Project. The reason the costs to reconcile are so much larger for lEM accounts is due 
to the large number of accounts and the fact that the IIM trust management systems and the 
condition of the ECM records are generally considered to be much worse than the systems and records 
applicable to tribal trust accounts. For example, substantially all of the HM electronic financial 
records axe missing prior to 1985. Therefore, even if a reconciliation effort were initiated for EM 
accoimts, it is unlikely that it would produce satisfactory or conclusive results or amount to an 
accounting sufficient to aid in the determination of harm, damage or loss to HM account holders. 

Rather than spend $108 million to $281 million to produce what is likely to be an 
unsatisfactory result, it is proposed that the larger amount or $281 million (Settlement 2-1) h€ 
Specifically used to compensate DM account beneficiaries for any harm, damage or loss arising out 
of the government's inability to provide an accurate and timely accounting to HM trust account 
holders. This figure is not submitted as nor is it to be considered an appraisal of the actual damage 
and harm suffered by these account holders. This figure is based on the probable amount it would 
cost the trustee to produce an unsatisfactory reconcilement of these accounts. The actual damage 
figure may be materially different. 

Since there is not a practical way equitably to allocate the settlement amount to individual 
account holders, past and present, it is proposed that all $281 million in principal be deposited in the 
HM Investment Pool and subsequently invested for the benefit of HM account holders. This would 
be a permanent ftrnd and would also act as a reserve to pay claims successfully brought by 
individual account holders. Principal could not be withdrawn from the IIM Investment Pool, except 
to pay for individual claims, successfully brought by HM holders through litigation or otherwise. 

Current and fliture DM account holders would benefit by receiving the earnings on the 
permanent fund in the form of an increased yield on HM account balances. 

To further enhance their opportimity for higher yields on savings, to encourage savings and to 
allow.' previous EM account holders an opportunity to panicipate, all IIM accounts will be converted 
to trust savings accounts with a checking account feature. Such accounts would retain all current 
account features, including the feature which permits disbursement of IIM deposits. DM account 
holders would continue to receive all eligible disbursements as they do now or could elect to save all 
or a part of IIM monies to earn the extra yield provided by the $28 1 million permanent settlement 
fund. Voluntary deposits would be accepted from all current or past DM account holders. Former 
IIM account holders could re-open accounts and deposit their savings to earn the higher yield as 
well. In addition all interest received by EM account holders would be free of federal taxes by Act 
ofCongress. 

19 
Attachment C Part 3 to Boswell Declaration 0604 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 22 of 29 



Type 2-2: Restoration of IIM Thrift Industn" Losses 
SettJenjent 2-2; S13 million, more or less. 

This amount of money would restore to the HM account holders S 12.8 million, more or less, in 
interest that was not earned on over S5 million in principal that was lost as a result of failed 
investments by the BIA in the 1980s and not restored until recently. 

Rationale: 

The documentation for this settlement amount is contained in the Department of the Interior 
(Deparrment) FY 1996 Budget Submission to Congress, wherein the Department requested 
appropriations of $12,668,000 to be used to restore interest that was not earned for IIM accoimt 
holders because of principal that was lost as a result of investments from the UM Investment Pool in 
uninsured obligations of failed credit imipns and savings and loan associations. 

The 12,668,000 is for the period from FY 1984 through FY 1 995 and continues to increase at 
an amount of approximately $53,000 a month or about $636,000 annually. 

Type 2-3: Restoratioo of Overdraft Interest Clearing Accounts 

Settlement 2-3: S42.2 million, more or less. 

Specific Settlement to restore $42.2 million in unidentified Overdraft Interest Clearing 
Accounts to the DM Pool. Amount is equivalent to non-eaming assets which deprive current UM 
account holders of over $2 million in annual income. 

Type 2-4: Settlement of Miscellaneous Losses at Ofllce of Trust Funds Management 

Settlement 2-4: S 28 J million: 

Losses and associated interest SIO.O 

To bring subsidiary (IRMS) and Control Acct (Omni) into balance 10.8 

Budget Suspense Accts LO 

To clean-up all remaining General Ledger Accts 6.5 

Approximate Total " $283 

■ $28.3 million will clear known losses, aged suspense accounts, unreconciled general ledger 
entries and other accounting errors of the past which cannot be recovered. 

The "Approximate Total" of $28.3 million is the best estimate of the funds that would be 
required to wipe the slate clean as of 8/29/96. This liability has accrued over numerous years and 
various accounting systems and conversions (from manual systems to automated systems). Just to 
reiterate this is the best estimate of the potential liability that continues to grow, and was derived 

Attachment C Part 3 to Boswell Declaration 0605 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 23 of 29 



from numerous accounting systems that at- best are ver\- suspect as to their 



accuracy. 



Type 2-5 HM and Tribal Account Holders Joint Settlement on Systems Improvements 
Implementation of the Special Trustee's Strateeic Plan 



Settlement 2-5: S147 million. 



KM account beneficiaries would share with tribal beneficiaries in the Si 47 million proposed 
by the Special Trustee to bring trust managemem policies, procedures, practices and systems up to a 
commercial standard within three years. 

Rationale: 

As noted, in February 1 996 the OST produced a concepmal Strategic Plan to acquire and 
institutionalize specified systems. Implementation of this plan will ensure that the U. S. 
Government establishes appropriate policies and procedures, develops necessary systems and takes 
the affirmative actions necessary to provide an accurate and timely accounting to American Indian 
trust beneficiaries in the future. In this manner the proper discharge of the Secretary of the Interior's 
trust responsibilities finally can be accomplished. The Strategic Plan (attached) reads in part: 

Phase I of the Strategic Plan is designed to bring the trust accounting and management 
systems up to commercial standards within three years. TTiis, at a minimum, will involve acquiring, 
automating, updating, integrniing, coordinating and consolidating to produce: 

1 . A tr\ist resource/asset management delivery system. 

2. An accounts receivable data and billing system that uses lease-contract and land and 
ownership information. 

3. A trust, depository, payments and delivery system for Individual Indian Money (EM) 
accounts. 

4. A land records and title recordation and certification system. 

5. A general ledger and general ledger accounting system. 

6. A technology services center dedicated to trust resource and funds management 

7. A national archives and records center. 

8. A risk management and control system. 

9. An independent institutional structure. 

This will involve consolidating trust resources, trust fimds and land ownership and records 
management processes into a single, independent institutional unit with its own management 

21 
Attachment C Part 3 to Boswell Declaration 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 24 of 29 



stnicmre to accommodate the restructunng and reorganization contemplated bv Phase I of die 
Strategic Plan. The unit should be organized by ftinction and dedicated exclusively to trust 

rnanagement. The umt should have agency or bureau status v,ithin the Deparunent of the Interior or 
elsewhere. 

•The details are contained in the attached Special Trustee's Strategic Plan. 

The details of the costs to implement the Strategic Plan are also in the attachment The 
summary costs axe as follows: 



22 
Attachment C Part 3 to Boswell Declaration 0607 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 25 of 29 



Cost of Special Trustee's Strategic Plan Phase I 
( S in thousands) 



1996 


1997 


1998 


1999 


2000 


2001 


iotal 


3,000 


49,682 


32,706 


20,389 


20,586 


20.585 


146,948 



The implementation of the OST Strategic Plan will provide with reasonable assurance an accurate 
and timely accounting of the HM and tribal trust account balances, collections, deposits, 
disbursements, investments and return on investments. For this reason, the OST Strategic Plan 
implementation and costs are an integral part of both the EM settlement proposals and the tribal 
settlement proposals. 

2-6: Settlement for Reconciliation Project Unreconciled Transactions 
Settlement 2-6A: S300 million 

This is a general settlement of potential damages for all unreconciled transactions arising 
from the Reconciliation Project. Proceeds of this general settlement will be used to partially 
capitalize the Development Bank contemplated by Settlement 2-7. 

Settlement 2-6B: S300 million 

This is a specific settlement for the following 32,901 transactions for which supporting 
documentation could not be located during the Reconciliation Project ($ millions, absolute value): 

Receipts: ■ 1,123.3 

Transfers: 479.6 

Disbursements 808.6 

Total 2.411.5 

Actual Disbursement Exposure can be computed as: 

Unreconciled ($ million, absolute value) 808.6 

Less: Positive Disbursements (73.6) 

Attorney and Expert Witness Fees (40.5) 

Alaska Regional Corporations 119.5 

Principal Disbursement Exposure 575.1 

Interest on Principal 1.361.8 

, Total Disbursement Exposure 1.936.9 

$300 million will be disbursed to individual tribes with known unreconciled disbursements. 
The settlement for each tribe would eqtiai the product of the percentage of each tribe's unreconciled 
disbursements plus interest (date of inception through 12/31/95) to total unreconciled disbursements 

23 
Attachment C Part 3 to Boswell Declaration 0608 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 26 of 29 



plus interest on the total times the senlement amount of 5300 million. The excess pnncipal and 
interest potential liability to the tribes %vill be considered satisfied by the 2-6A general senlement 
and by the 2-7 general settlement. 

Ratiofiale; 

These aggregate settlements are to be awarded to tribal trust account beneficiaries based 
generally on the S2.2 billion of unreconciled non-investment transactions (excluding positive 
transactions and payment of anomey's and expert wimess fees and expenses and certain other 
exclusions for which reasonable proof of payment exists) identified by the Reconciliation Project. 

The disbursement errors and exceptions are of particular importance and concern since they 
represent known amounts which were charged against known tribal accounts, but for which the 
payee could not be determined during the Reconciliation Project. Therefore, proof of who benefined 
fi-om these disbursements cannot be established by the federal government. The unreconciled 
disbursements expose the govenment to the greatest potential liability and are treated accordingly in 
the allocation of the senlement amounts, both specifically to tribes and in the general settlement as 
well. 

$575.1 million is a net amount representing unreconciled disbursements as defined above. 
Compounded interest firom the date of the errors through December 31, 1995 is $1,361.8 million. 

Distribution is based on the reasons slated below. 

Settlement 2-6X: $300 million 

It is proposed that this amoimt be distributed to all tribes with trust accounts in a general 
way. The proceeds will be used to provide part of the initial capital for the Development Bank 
described in Type 2-7. 

The rationale for Settlement 2-6A is as follows. Had a fiill accounting been possible for the 
$575. 1 million in unreconciled disbursements or had the Reconciliation Project covered previous or 
different reconciliation periods, different resxUts might have occurred and tribes other than those 
covered in Settlement 2-6B might have suffered hann, damage or loss. Also, those tribes covered in 
Settlement 2-6B might have had different levels of harm, damage or loss as well. The general 
senlement is intended to cover any damages which may have occurred as a result. 

In addition, it appears that the condition of the records and the quality of the trust 
management systems were much worse for periods prior to 1972. Therefore, it is reasonable to 
assume that substantially more unreconciled receipts, transfers and disbursements would have been 
exposed had the Reconciliation Project covered periods prior to 1972. Any harm or damage 
resulting is intended to be covered by the 2-6A general settlement of $300 million and general 
settlement 2-7. 

The general settlements also compensate trust beneficiaries that may have been harmed as a 

24 
Attachment C Part 3 to Boswell Declaration q^qo 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 27 of 29 



result of mis-posted receipts and transfers which may ha%'e occurred in the universe of unreconciled 
receipts and disbursements. Receipts are mostly deposits. The government can, demonstrate that ihe 
unreconciled receipts were posted to the general ledger accounts of panicular tribes, so those tnbes 
benefiasd by the transactions and axe unlikeiy to bring a claim as a result. The same is true, 
generally, for unreconciled transfers berv,een accounts of the same tribe. There is no evidence of 
damage to these tribes, but if transfers were mis-posted and should have been posted to the account 
of a different tribe, damage to the other tribe may have resulted. There is simply no way to 
determine whether damage occurred to particular beneficiaries as a result of the unreconciled 
receipts or transfers, nor who these harmed beneficiaries were. The general settlements, however, 
are intended to cover any such unidentified harm or damage. 

To partially compensate all eligible tribal trust account holders for the harm and damage 
which might have occurred as a result of the unreconciled transactions, S300 million will be 
awarded. The proceeds will be used to capitalize in part the Development Bank which will benefit 
all tribes. 

Settlement 2-6B: S300 million. It is proposed that this amount be distributed to individual 
tribes with known unreconciled disbursements since these items represent the highest potential for 
actual harm and damage having occurred for Tribal trust beneficiaies. 

The settlement for each tribe would be equal to the product of the percentage of each tribe's 
unreconciled disbursements plus interest (calculated from date of the transaction through December 
31, 1995) to total unreconciled disbursements plus interest on the total unreconciled disbursements 
times the settlement amount of $300 million. While this may not cover all the potential damage 
which may have resulted from these unreconciled disbursements, the total award to the tribes covers 
52% of total unreconciled disbursement exposure and 15.5% of total unreconciled disbursement 
exposure plus interest on those transactions from inception. Excess damage, if any, is intended to be 
covered by settlement 2-6A and by the general settlement 2-7. 



Type 2-7: General Settlement for IIM and Tribal Account Holders 

Establishment of a Development Bank for American Indians 

Settlement 2-7: Establishment of a Development Bank for American Indians 

with the following capital and guarantees to be provided by the 
U. S. Government: 

2-7 A. Equity Capital S500 million 

2-7B. Borrowing Capacity 10 i Equity Capital 

2-7C. Initial Borrowing from U. S. S3 billion for 30 yrs 

at 30 year T Rate 

Settlement 2-7 is intended to settle all other potential claims arising out of the reconciliation 
project not covered by Type 1 claims and other Type 2 claims and past potential liability for trust 
mismanagement practices in general. A full explanation of the rationale on this settlement and 

25 
Attachment C Part 3 to Boswell Declaration 06I0 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 28 of 29 



details on the Development Bank can be found in Appendix I. 

General Sectiement 2-7 involves the creation of a federal Development Bank for Amencan 
Indians (D-Bank) which will be formed and capitalized by ±c federal government and wiii be a 
nationv.ide financial institution providing a dependable source of lending to American Indians and 
Amencan Indian Tribes and their communities and a dependable source of investing in .American 
Indian Enterprises. 

D-Bank will provide access to long-term loans and investments for economic development, 
consistent with principles of self-determination, self-governance and self-sufficiency and will 
provide access to low interest rates on loans, made possible by D-Bank's tax free status and its 
access to funding in the nation's capital markets at rates commensurate with those paid by the U. S. 
Government and Agencies of the U. S. Government. 

D-Bank will also be allowed to invest up to $300 million in the purchase, holding, financing 
and sale of fractionated realty interests in Indian allotment lands. Such purchases and financings 
will be made on prudential terms to eligible individuals and tribes. Such activities will be regulated 
by rules set forth in legislation to resolve the fractionated heirship issues and will be administered to 
achieve the consolidation of existing fractional interests and the prevention or substantial reduction 
f further fractionation. 

D-Bank will be a for-profit financial institution and will not receive appropriated funds for 
operating expenses. It will receive appropriated funds for lifeline financial services and other 
specified programs as approved by Congress. 

D-Bank will be authorized to invest up to 25% (initially $125 million) of its permanent 
capital in eligible individual Indian and Indian Tribe businesses and projects which will aid 
economic development of the American Indian communities. These investments include common 
and preferred stock and long-term subordinated draft investments in: 

A. Infrastructure Acquisition and Development Activities 

B. Project Financing 

G. Venture Capital Businesses 
D. Established Business 



26 
Attachment C Part 3 to Boswell Declaration 061 1 



Case1:06-cv-01897-JR Document 26-14 Filed 08/11/2007 Page 29 of 29 



D-Bank-s capiial and funding will be provided by the federal sovemment in the follou.ne 
amounts: ^ 



500 



3,000 



2-7A. Equity Capital: 

Initial Equity Capital of $500 million will be provided by 
the federal government as part of Settlement 1-6A (S200 
Million) and 2-6A ($300 million). Shares will be 
distributed to all federally recognized tribes on some 
equitable basis set forth in legislation. 

2-7B. Loans from U. S. Government: 

$3 billion in direct long-term loans will be provided to 

D-Bank.for thirty years at the U. S. Treasury rate for 
30 year obligations. 

2-7C. U. S. Government Guaranteed Obligations 5,000 

Fumre funding of up to 10 times equity capital from the 
sale of bonds and notes in the nation's capital markets by 
D-Bank will be guaranteed by the full faith and credit 
of the United States. Loans from the United States Government 
. of $3 billion arc included in this amount. 



27 
Attachment C Part 3 to Boswell Declaration Qg|2 



Case 1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 1 of 20 



ATTACHMENT C 



TO BOSWELL 



DECLARATION 



PART 4 



Case 1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 2 of 20 



The follov\-ing is a summan- of Tvpe 2 Claims and Senlemen 



ts: 



Type 2 Claims 

Settlement Estimate 

(5 milYwns) 

Type 2 Settlement Category 

2-1 : nM Account Holders Senlement Proposal 

Specific Settlement of Past Damages to EM Holders 

I . Amount is equal to estimated reconciliation costs 
for EM Accounts. Amount will be invested in EM 
pool for benefit of all account holders, past, present 
and future who will receive a higher yield as a result. 

2. Settlement also includes tax free status for future 
DM accounts. 

2-2: Restoration of EM Thrift Industry Losses 

Specific Settlement to restore interest lost by EM account 
holders because of principal that was lost as a result of EM 
Pool investments in obligations of failed thrifts m 1 980s. 

2-3: Restoration of Overdraft Interest Clearing Accounts 

Specific Settlement to restore J42 million in unidentified 
Overdraft Interest Clearing Accounts to the EM Pool. 
Amount is equivalent to non-earning assets which deprive 
current EM account holders of over S2 mill'on in annual 
income. 

2-4: Miscellaneous OTFM General Ledger Losses 

Specific Settlement to clear $28.3 million in general ledger 
differences, suspense amounts, balancing differences, 
overdraft losses and other losses. 



Total 

281 



Tax Free Status 
13 



42.2 



28.3 



28 



Attachment C Part 4 to Boswell Declaration 



0613 



Case 1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 3 of 20 



Type 2 Claims Settlement Estimate (Smillions) (continued) 

Type 2 Settlement Category 

2-5: HM and Tribal Account Holders Joint Senlement for Systems 
Improvements 

Specific Settlement to bring trust management systems up to 
commercial standards. Amount is the estimated cost 
to implement the Special Trustee's Strategic Plan over five 
years. Implementation will ensure that the government takes 
the actions necessary to provide an accurate and timely 
accounting to American Indian trust beneficiaries in the 
flitiire. In this manner the proper discharge of the Secretary's 
trust responsibilities finally can be accomplished. 

2-6: Settlement for Reconciliation Project Unreconciled Transactions 

2-6A. General Settlement of potential damages for all unreconciled 
transactions arising fixDm the Reconciliation Project. Proceeds 
of General Settlement will be used to partially capitalize 
Development Bank (See Settlement 2-7) 

2-6B. Specific Settlement for the following 32,901 transactions for 
which supporting documentation could not be located during 
the Reconciliation Project ($ million, absolute value): 



Total 

147 



300 



300 



Receipts: 
Transfers: 
Disbursements 
Total 



1,123.3 
479.6 
808.6 

2,411.5 



Actual Disbursement Exposure can be computed as: 

Unreconciled ($ million, absolute value) 808.6 

Less: Positive Disbursements (73.6) 

Attorney and Expert Wimess Fees (40.5) 

Alaska Regional Corporations 119.5 

Principal Disbursement Exposure 575.1 

Interest on Principal 1.361.8 

Total Disbursement Exposure 1,936.9 



29 
Attachment C Part 4 to Boswell Declaration 



0614 



Case 1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 4 of 20 



Type 2 Claims Settlement Estimate (Smillions) (continued) 

Type 2 Settlement Category Total 

S3 00 miHion v»-ili be disbursed to individual tribes with known unreconciled 
disbursements. The settlement for each iribe would equal the product of the 
percentage of each tribe's unreconciled disbursements plus interest (date of 
inception through 12/31/95) to total unreconciled disbursements plus interest 
on the total times the settlement amount of $300 million. The excess 
principal and interest potential liability to the tribes will be considered 
satisfied by the 2-6A general settlement and by the 2-7 general settlement. 

2-7: General Settlement for IIM and Tribal Account Holders 

Settlement 2-7 is intended to settle all other potential claims arising 
out of the reconciliation proj ect not covered by Type 1 claims and 
other Type 2 claims and all past potential liability for tmst 
mismanagement to be defined by the legislation through the effective 
date of settlement set by legislation. 

General Settlement 2-7 involves the creation of a federal 
Development Bank for American Indians (D-Bank) which will be 
formed and capitalized by the federal government and will be a 
nationwide financial institution providing a dependable source of 
lending to American Indians and American Indian Tribes and their 
communities and a dependable source of investing in American 
Indian Enterprises. 

D-Bank will provide access to long-term loans and investments for 
economic development, consistent with principles of self- 
determination, self-governance and self-sufficiency and will provide 
access to low interest rates on loans, made possible by D-Bank's tax 
free status and its access to funding in the nation's capital markets at 
rates commensurate with those paid by the U. S. Government and 
Agencies of the U. S. Government. 

D-Bank will also be allowed to invest up to $300 million in the 
purchase, holding, financing and sale of fractionated realty interests 
in Indian allotment lands. Such purchases and financings will be 
made on prudential terms to eligible individuals and tribes. Such 
. activities will be regulated by rules set forth in legislation to resolve 
the firactionated heirship issues and will be administered to achieve 
the consolidation of existing fi^ctional interests and the prevention 
or substantial reduction of further fiactionation. 



30 
Attachment C Part 4 to Boswell Declaration 0615 



Case 1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 5 of 20 



Type 2 Claims Settlement Estimate (Smillions) (continued) 

Type 2 Settlement Category 

D-Bank will be a for-profit financial institution and will not receive 
appropriated funds for operating expenses. It will receive 
appropriated funds for lifeline fmancial services and other specified 
programs as approved by Congress. 

D-Bank will be authorized to invest up to 25% (initially $125 million) of its permanent capital in 
eligible individual Indian and Indian Tribe businesses and projects which will aid economic development of 
the American Indian communities. These investments include common and preferred stock and long-term 
subordinated draft investments in: 

A. Infrastructure Acquisition and Development Activities 

B. Project Financing 

C. Venture Capital Businesses , . 

D. Established Business 

D-Bank's capital and funding will be provided by the federal government 
in the following amounts: 

2-7 A. Equity Capital: 500 

Initial Equity Capital of S500 million will be provided by 

the federal government as part of Settlement 1 -6A ($200 

Million) and 2-6A ($300 million). Shares will be 

distributed to all federally recognized tribes on some 

equitable basis set forth in legislation. — 

2-7B. Loans from U.S. Government: 3,000 

$3 billion in direct long-terra loans will be provided to 
D-Bank for thirty years at the U. S. Treasury rate for 
30 year obligations. 

2-7C. U. S. Government Guaranteed Obligations 5,000 

Future funding of up to 10 times equity capital from the 
sale of bonds and notes in the nation's capital markets by 
D-Bank will be guaranteed by the fiill faith and credit 
of the United States. Loans from the United States Government 
of $3 billion are included in this amount. 



Attachment C Part 4 to Boswell Declaration 



Of,)^ 



Case 1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 6 of 20 



Type 2 Claims Settlement Estimate (Sraillions) (continued) 

Type 2 Settlement Categorj' j^t^i 

Total TV'pe 2 Claims: 

1. Direct Senlement Obligations: Settlements 2-1 through 2-7A 1,6 11. 5 

2. Loans from U. S. Government: Settlement 2-7B 3,000 

3. U. S. Government Guaranteed Obligations of $5 billion, 

net of $3 billion Loan: Settlement 2-7C 2.OOO 

Total Type 2 Claims 6 6115 

V. WAIVERS AM) LITIGATION 

If a tribe accepts payment of its Type 2 claims under the legislation's settlement process, the 
acceptance would constitute a fiill discharge of the United States with respect to all claims regarding Tribal 
trust fund accounts for the period prior to September 30, 1 995. Settlements under the stamte would not be 
reviewable in court. If a tribe did not accept settlement under these provisions, the tribe could litigate its 
claims, but none of the guidelines pertaining to the value of its claims would be applicable, nor would the 
tribe be able to participate in the Type 2 settlements. 

Tribes that do not settle claims under the settlement procedure outlined above may seek to litigate 
those claims in court; however, such litigation is usually extremely costly and time-consuming for all the 
litigants. For these reasons, the Department has specifically rejected any litigation process that would 
resemble the Indian Claims Commission proceedings of years past, and believes that the legislation 
establishing the settlement procedures also must establish certain parameters for litigating the claims of non- 
settlers. Such parameters are necessary to ensure that litigation proceeds in an orderly and efScient manner, 
to ensure that the beneficiaries of the claims, as opposed to their attorneys and accountants, arc the persons 
who benefit from any amounts recovered in litigation, and to encourage settlement of as many claims as 
possible. The Department may seek to establish parameters for the litigation of claims for those who do not 
avail themselves of the settlement opportunities in the legislation. Such parameters could address and 
resolve, for example, issues relating to statute of limitations, burdens of proof, standards of accounting, 
limitations on attorneys fees and forgiveness/interest policies. Congress should also consider requirements 
.forcing the trustee (U.S. Government) to negotiate, litigate and arbitrate in good faith. 

The HM and tribal account balances will be set as of September 30, 1995, subject to individual changes as 
result of court procedures, error corrections, etc. 



32 
Attachment C Part 4 to Boswell Declaration 

0617 



Case 1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 7 of 20 



.\PPENDLX 1 
EST.4BLISHMENT OF A DEVELOPMENT BANK FOR AMERICA>- rNDlANS 

Establishment of a Development Bank for American Indians with the following capital and 
guarantees to be provided by the U.S. Government: 

Equity Capital S500 million 

Borrowing Capacity lo i Equity Capital 

Initial Borrowing from U. S. S3 billion for 30 yrs 

at 30 year T Rate 

The American Indian Trust Fund Management Refom Act of 1994 requires, in part: 

"(B) Provisions for opportunities for Indian tribes to assist in the management of their trust accounts 
and to identify for the Secretary options for the investment of their trust accounts, in a manner 
consistent with the tr^ responsibilities of the Secretary, in ways that will help promote economic 
development in their communities." 

The Special Trustee is considering a phase two to the comprehensive strategic plan which will 
include a Development Bank for American Indians. 

A Development Bank (D-Bank) will be formed and capitalized by the federal government. D-Bank 
will be a nationwide financial instimtion providing a dependable source of: 

A. Lending to American Indians and American Indian tribes and their communities. 

B. Investing in American Indian Enterprises. 

D-Bank will provide the following principal benefits to American Indians and Indian tribes: 

A. Access to long-terra loans and investments for economic development, consistent with principles 
of self-determination, sclf-govcmance and self-sufBciency. 

B. Access to low interest rates on loans, made possible by D-Bank's tax free status and its access to 
funding in the nation's capital markets at rates commensurate with those paid by the U. S. 
Government and Agencies of the U. S. Government. 



D-Bank: 



A. will be an instrumentality of the federal government and will be backed by the full faith and 
credit of the U. S. Government. 

B. will be examined, supervised and regulated by an Agency of the U. S. Government, existing or to 



Attachment C Part 4 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 8 of 20 



be formed for this purpose. 

C. will lend to and invest in various American Indian emerpnses. uifrastnicrure projects and other 
projects of a developmental nature. 

D. will facilitate and implement efforts and initiatives to make individual American Indians and 
Amencan Indian tribes economically more self-sufficient under established principles of self- 
determination and self-governance. 

E. will be a for-profit financial institution and will not receive appropriated funds from the FedcrJ 
Government for operating expenses. It will receive appropriated funds for lifeline banking services 
and other specified programs as approved by Congress. 

F. may be used to facilitate the disbursement of appropriated funds for other governmental programs 
for American Indians and their tribes and communities. 

G. will have a nationwide delivery network vath branch offices located in or near major American 
Indian communities. The delivery system will also employ a state of the art telecommunications and 
electronic delivery system. 

D-Bank's capital and funding will be provided by the federal government in the following amounts: 

1 . S500 million in equity contributions from appropriated or judgment fimds. 

2. S3 billion in direct, long-term loans from the federal government for thirty years at the U. S. 
Treasury interest rate on thirty year obligations. 

3. Future funding of up to 10 times equity capital from the sale of bonds and notes in the nation's 
capital markets, guaranteed by the fiill faith and credit of the United States. 

D-Bank's initial capital stock will be distributed to federally recognized American Indian tribes in 
proportion to the number of American Indians living on or near reservations as determined by the latest 
census information or by some other acceptable means. This permanent capital cannot be sold, traded or 
withdrawn. Each share Will be vested with one voting right for purposes of electing D-Bank's Board of 
Directors or for voting on other corporate matters requiring shareholder approval. 

Each borrower of D-Bank will generally be required to invest in capital stock or participation 
certificates of D-Bank, generally at the rate of two percent of the loan. 

Dividends and patronage payments may be authorized by D-Bank's Board of Directors, subject to 
regulations that establish minimum at-risk capital standards. 

D-Bank will have a corporate structure patterned after banJcs belonging to the Farm Credit System 
and will be an instrumentality of the federal government with the fiill faith and credit backing of the United 
States. 

2 
Attachment C Part 4 to Boswell Declaration ^^^^ 



Case 1:06-cv-0l897-JR Document 26-15 Filed 08/11/2007 Page 9 of 20 



D-Bank's Board of Directors will consist of 10 to 20 members, the majorir%- of whom must be 
.^encan [ndians. The Board vviH be diversified by tnbe. area of the counff>-, borrov,nna relationships and 
will include members from the public at large. 

p-Bank's executive management and employees will be qualified bankers and will be exempt from 
federal government employment requirements. Compensation will be determined by the Board of Directors 
after taking into account general compensation and benefits schedules of the Farm Credit System banks. 

D-Bank's lending, leasing, investment and financial services will be dedicated and restricted solely 
to making loans, leases , investments and financial services available to eligible and qualified .^^erican ' 
Indians and American Indian tribes and their communities in, all areas of the country. Prudential, safe and 
sound lending and investment policies and practices will be strictly followed and enforced. 

D-Bank will charge appropriate fees and interest rates for its financial services and products, 
sufficient to cover fiinding, operating and administrative expenses and to provide a reasonable return on 
shareholder's equity. 

D-Bank will provide a full range of commercial, real estate and consumer loans to eligible American 
Indians, tribes and their communities. 

iDvestment in Community Development and American Indian Businesses: S125 million 

D-Bank will be authorized to invest up to 25% (initially, $125 million) of its permanent capital m 
eligible individual Indian and Indian tribe business ventures and projects which will aid economic 
development of the American Indian communities. These mvestments will include common stock, 
preferred stock: and long-term subordinated debt investments in: 

A. Infiustructtire Acquisition and Development Activities 

B. Project Financing . 

C. Venmre Capital Businesses 

D. Established Businesses 

Investment in Fractionated Realty Interests: S300 million 

D-Bank will be allowed to invest up to S300 million in the purchase, holding, financing and sale of 
firactionaied realty interests in Indian allotment lands. Such purchases and financings will be made on 
prudential terms to eligible individuals and tribes. Such activities will be regulated by rules set forth in 
legislation to resolve the fi^ctionated heirship issues which has as its principal purposes: 

A. The consolidation of existing fi^ctional interests. 

B. The prevention or substantial reduction of further fractionation. 



Attachment C Part 4 to Boswell Declaration /.,„„ 

UoZU 



Case 1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 10 of 20 



D-Bank wll be required to have an annual audi: and report from an independent and quailtled 
accountine firm. ^ 



D-Bank will be exempt from all federal and state taxes. 
D-Bank's pro-fcrma balance sheet is as follows: 



4 
Attachment C Part 4 to Boswell Declaration 



0621 



Case1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 11 of 20 



D-BANK PRO-FORAIA B.ALA>CE SHEET 

BANKESG OPER.ATIO.NS 

(Smillions) 



ASSETS 



Cash, Securities and Liquid Assets 500 



Loans: 



2^00 



- Commercial 
Consumer 
Real Estate 
Infrastructure 

Fractionated Realty Holdings: 300 

Loans to Facilitate 
Investment Holdings 



*LLABILITIES 

Demand Deposits 
Savings & CDS 
Official Checks 



Long-term Debt: 

Note to U. S. Treasury 
30 yrs.; 30 yr. T Rate 









3,000 



Development Investments: 

Infrastructure Acquisition & 

Development 
Project Financing 
Venture Capital to New 

Businesses 
Capital for Established 

Businesses 

Other 



125 



75 



Other Debt: 

Limited to 10 i Equity Capital, 
including long-term debt 



Equity Capital 



Total Assets 3^00 Total Liabilities and Capital 

*AJ1 deposits and liabilities guaranteed by the United States 



500 



3,500 



Attachment C Part 4 to Boswell Declaration 



0622 



Case1:06-cv-01897-JR Document 26-15 Filed 08/1.1/2007 Page12of20 



D-BANK SUMM.AJRY OF FINANCIAL SERVICES 



LO.ANS .AND LEASES: 



Conmercial: Small Business 

Consumer: Credit Card 

Mobile Home 
Real Estate: Single Family 

Acquisition 
Infrastructure: Acquisition 



Middle Market 
Home Equity 
Personal 



Agriculture 



Auto 



Multiple Family Commercial 
Development Construction 

Development Project Financing 



FRACTIONATED RE.ALTY HOLDINGS: 



Purchases 



Sales 



DEVELOPMENT INVESTMENTS: 



Project 
Financing 



Infrastructure 
Acquisition <& 
Development 



Investments 



Venture Capital 
New Businesses 



Loans to Facilitate: 
Individual & Tribal 



Capital to Existing 
Businesses 



DEPOSITORY SERVICES: 

Demand Deposits Savings Deposits Other Deposits Certificates of Deposit 



OTHER SERVICES: 
ATM Access 
Pavments 



Cash Management Accounting 
Disbursements Wire Transfer 



Official Checks Overdraft 
Protection 

Insurance Sales Annuity Sales 



Discount 
Brokerage 



Statements & Reporting 
Money Orders 
Mutual Fund Sales 



Attachment C Part 4 to Boswell Declaration 



0623 



Case 1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 13 of 20, 



TRUST OPER-\TIONS: 



Assets: 



Cash, Securities and Liquid Assets 



OFFICE OF TRUST FU^'DS MANAGEMENT 
PRO-FORMA B.ALANCE SHEET .AM) TRUST SERVICES 

(Smillions) 



Liabilities: 



2,500 Trust Accounts: 



Tribal 
Individual Indian 



2,000 
500 



TRUST SERVICES: 

Managed Accounts 

Statements & Reporting 

Resource, Asset & Lease 
Management 

IIM Deposits 



2^00 



Agency Accounts 

Accounting 

Cash Management 



Land Records & Ownership 
Management 



230 



Custodial Accounts 
Payments/Disbursements 
Investment Services 

Collections 



Attachment C Part 4 to Boswell Declaration 



0624 



Case 1:06-cv-01897-JR Document 26-1 5 Filed 08/11/2007 Page14of20 

APPENDIX 2 
SETTLEMENT PROPOSAL SUMMARY 



Type 1 Settlement Category 



Type 1 Claims 

Settlement Estimate 

(S millions) 



Principal Interest Total 



1-1. Due From Tribes: Forgiven 

1-lA. Proposed Adjustments 
1-lB. Rollover Amounts 
Total Forgiven 

Note: Total Forgiven amount does not require 
appropriations or payment from the 
Judgment Fund. 

1-2. Due to Tribes 



11.6 
26.1 

37.7 



11.6 
116.9 
128.5 



23.2 
143.0 
166.2 



1-2A. Proposed Adjustments 
1-2B. Rollover Amounts 
Sub-total 

1-2C. Interest on Deposits Due To Lag Times 
Between Collection and Deposit 

1-2D. Interest on Deposits Due to Lag Times 
Between Deposit At Treasury and Credit 
To Account of Beneficiary 

SubTotal Due to Tribes Settlement under 1-2 



10.6 


14.5 


25.1 


17.5 


92.1 


109.6 


28.1 


• 106.6 


134.7 



8.2 



8.2 



.5 



28.1 



1153 143.4 



Attachment C Part 4 to Boswell Declaration 



0625 



Case 1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 15 of 20 



Type 1 Settlement Category 

1-3. Due From Tribes: Forghen 

Passed Adjustments: 
Principal 
Interest 
Total 

1-4. Due To Tribes: 



Type I Claims 

Settlement Estimate 

(S millions) 



7.6 
25.4 
33.0 



Principal Interest Total 



Passed Adjustments: 
Principal 
Interest 
Total 



3.4 

LI 

9.1 



1-5. Disputed Claims Based on Additional Tribal Documentation 
. and Due To Tribes Based on Negotiation, Mediation and 
Arbitration 

1-6. Reconciled Disbursements with Incomplete 
Disbursement Voucher Packages 

1-6A. General Settlement of all p<>tential liability for all reconciled 
disbursements with incomplete disbursement voucher packages. 
Proceeds will be used to capitalize partially the Development 
Bank (See Settlement 2-7). 

1-6B. Reconciled Disbursements with Incomplete Disbursement 
Voucher Packages and Due To Tribes Based on Negotiation, 
Mediation and Arbitration. 



(1) 



(1) 



(1) (1) 



(1) 



(1) 



(2) 200 



Principal 
Total Type 1 Exposure Arising From Disputes 



4,110 



(1) & (2) m & (2) 200 
(1)&(2) (1)&(2) 400 



(1) None unless Tribes dispute the account balance and bring successful action and receive awards based on 
negotiation, mediatioD or arbitration. 

(2) It is proposed that the legislation cap the potential liability for Type 1-6B claims atS200 million. Individual 
awards to a tribe will be capped at 5% of the total reconciled transactions with incomplete dbbursement packages for 
that tribe. The unused portion of the S200 million pool will be used to pay other Type 1 claims with any remaining 
balance reverting to the U. S. Treasury. General Settlement 1-6A for S200 million will be used to capitalize the 
development bank (See Settlement 2-7). 



Attachment C Part 4 to Boswell Declaration 2 



0626 



Case 1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 16 of 20 



Type 2 Claims 

Settlement Estimate 

(S millions) 



Type 2 Settlement Categcn' Total 

2-1: HM Account Holders Settlement Proposal 281 

Specific Settlement of Past Damages to DM Holders 

1. Amount is equal to estimated reconciliation costs 
for HM Accounts. Amount will be invested in IIM 
pool for benefit of all account holders, past, present 
and future who will receive a higher yield as a result. 

2. Settlement also includes tai free status for future 

nM accounts. Tai Free Status 

2-2: Restoration of lEVI Thrift Industry Losses 13 

Specific Settlement to restore interest lost by HM account 
holders because of principal that was lost as a result of DM 
Pool investments in obligations of failed thrifts in 1980s. 

2-3: Restoration of Overdraft Interest Clearing Accounts 422 

Specific Settlement to restore S42 million in unidentified 
Overdraft Interest Clearing Accounts to the IIM Pool. 
Amount is equivalent to non-earning assets which deprive 
current IIM account holders of over S2 million in annual 
income. 

2-4: Miscellaneous OTFM General Ledger Losses 283 

Specific Settlement to clear $28 J million in general ledger 
differences, suspense amouats^balanciag differences, 
. overdraft losses and other losses. 



Attachment C Part 4 to Boswell Declaration ^ 



0627 



Case1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 17 of 20 

Type 2 Claims Settlement Estimate (Smillions) (continued) 

Type 2 Settlement Category Y . I 

2-5: ECVI and Tribal Account Holders Joint Settlement for Systems 147 

Improvements 

Specific Settlement to bring trust management systems up to 
commercial standards. Amount is the estimated cost 
to implement the Special Trustee's Strategic Plan over five 
years. Implementation will ensure that the government takes 
the actions necessary to provide an accurate and timely 
accounting to American Indian trust beneficiaries in the 
future. In this manner the proper discharge of the Secretary's 
trust responsibilities finally can be accomplished. 

2-6: Settlement for Reconciliation Project Unreconciled Transactions 

2-6A. General Settlement of potential damages for all Unreconciled 300- 

Transactions arising from the Reconciliation Project Proceeds 
of General Settlement will be used to partially capitalize 
Development Bank (See Settlement 2-7) 



2-6B. Specific Settlement for the following 32,901 transactions for 
which supporting documentation could not be located during 
the Reconciliation Project: 

Receipts: 1,123J 

Transfers: 479.6 

Disbursements 808.6 

Total 2,411.5 

Actual Disbursement Exposure can be computed as: 

Unreconciled (S million, absolute value) 808.6 

Less: Positive Disbursements (73.6) 

Attorney and Expert Witness Fees (40.5) 

Alaska Regional Corporation 119.5 

Principal Disbursement Exposure 575.1 

Interest on Principal 1361.S 

Total Disbursement Exposure 1,936.9 



300 



Attachment C Part 4 to Boswell Declaration ^ 



0628 



Case 1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page18of20 

Type 2 Claims Settlement Estimate (Smillions) (continued) 

Type 2 Settlement Category Total 

S300 million will be disbursed to individual tribes yitk kjcown 
unrscoacilcd disbursemenls. The settlement for each tribe would 
equal the product of the percentage of each tribe's unreconciled 
disbursements plus interest (date of inception through 12/31/95) to 
total unreconciled disbursements plus interest on the total times the 
settlement amount of S300 million. The excess principal and 
interest potential liability to the tribes well be considered satisfied 
by the 2-6A general settlement and by the 2-7 general settlement. 

Type 2-7: General Settlement for IIM and Tribal Account Holders 

Establishment of a Development Bank for American Indians 

Settlement 2-7: Establishment of a Development Bank for American Indians 

with the following capital and guarantees to be provided by the 
U. S. Government: 

2-7 A. Equity Capital S500 million 

2-7B. Borrowing Capacity 10 x Equity Capital 

2-7C. Initial Borrowing from U. S. S3 billion for 30 yrs 

at 30 year T Rate 

Settlement 2-7 is intended to settle all other potential claims arising out of the reconciliation project 
not covered by Type 1 claims and other Type 2 claims and past potential liability for trust mismanagement 
practices in general. A full explanation of the rationale on this settlement and details on the Development 
Bank can be found in Appendix 1. 

General Settlement 2-7 ittvolves the creation of a federal Development Bank for American Indians 
(D-Bank) which will be formed and capitalized by the federal government and will be a nationwide financial 
institution providing a dependable source of lending to American Indians and American Indian Tribes and 
their communities and a dependable source of investing in American Indian Enterprises. 

D-Bank will provide access to long-term loans and investments for economic development, consistent 
with principles of self-determination, self-governance and self-sufficiency and will provide access to low 
interest rates on loans, made possible by D-Bank's tax free status and its access to funding in the nation's 
capital markets at rates commensurate with those paid by the U. S. Government and Agencies of the U. S. 
Government 

D-Bank will also be allowed to invest up to S300 million in the purchase, holding, financing and sale 
of fractionated realty interests in Indian allotment lands. Such purchases and financings will be made on 
prudential terms to eligible individuals and tribes. Such activities will be regulated by rules set forth in 
legislation to resolve the fractionated heirship issues and will be administered to achieve the consolidation of 
existing fractional interests and the prevention or substantial reduction of further fractionation. 



Attachment C Part 4 to Boswell Declaration 5 0629 






Case 1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 19 of 20 

D-Bank will be a for-profit financial institution and will not receive appropriated funds for operario" 
expenses. It w,Il receive appropriated funds for lifeline financial sei^ices and other specified nro-rram. a, " 
approved by Congress. h » ^^ -^^ 

D-Bank will be authorized to invest up to 25% (initially S 125 million) of its permanent capital id 
eligible individual Indian and Indian Tribe businesses and projects which wUl aid economic development of 
the American Indian communities. These investments include common and preferred stock and Icng-tenn 
subordinated draft investments in: 

A. Infrastructure Acquisition and Development Activities 

B. Project Financing 

C. Venture Capital Businesses 

D. Established Business 

D-Bank's capital and funding will be provided by the federal government in the following amounts: 
2-7A. Equity Capital: 5qq 

Initial Equity Capital of S500 million will be provided by 
the federal government as part of Settlement 1-6A (S200 
Million) and 2-€A (S300 million). Shares will be 
distributed to all federally recognized Tribes on some 
equitable basis set forth in legislation. 

2-7B. Loans from U. S. Government: 3,000 

S3 billion in direct long-term loans will be provided to 
D-Bank for thirty years at the U. S. Treasury rate for 
30 year obligations. 

2-7C. U. S. Government Guaranteed Obligations 5,000 

Future funding of up to 10 times equity capital from the 
sale of bonds and notes in the nation's capital markets by 
D-Bank will be guaranteed by the full faith and credit 
of the United States. Loans from the United States Government 
of S3 billion are included in this amount. 



Total Type 2 Claims: 

Direct Settlement Obligations: Settlements 2-1 through 2-7A 1,611.5 

Loans from U. S. Government: Settlement 2-7B 3,000 

U. S. Government Guaranteed Obligations of S5 billion, 

net of S3 billion Loan: Settlement 2-7C 2.000 

Total Type 2 Claims 6,611.5 



0630 
Attachment C Part 4 to Boswell Declaration 



Case 1:06-cv-01897-JR Document 26-15 Filed 08/11/2007 Page 20 of 20 

Summary of Type 1 and Type 2 Claims 

Settlement Estimate 

(S millions) 



Settlement Category 

l-l. Due From Tribes: Forgiven 

l-lA. Proposed Adjustments 
1-lS. Rcllovcr Amounts 
Total Forgiven (Does not require appropriations) 

1-2. Due To Tribes: 

1-2A. Proposed Adjustments 

1-2B. Rollover Amounts 

1-2C. Interest on Deposits Due to Lag Times 

1-2D. Interest on Deposits Due to Lag Times (MMS) 

SubTotal Type 2 Claims Settlement 

1-3. Due From Tribes: Forgiven Passed Adjustments 

1-4. Due To Tribes: Passed Adjustments 

1-5. Disputed Claims Settled by Negotiation or Arbitration 

1-6. Reconciled Disbursements with Incomplete Packages 
1-6A. General Settlement. Proceeds to D-Bank 
1-6B. Payable to Tribes after NegotiationyArbitration 

SubTotal Type 1-3 through 1-6 Claims Settlements 

2-1. IIM Account Holders Settlement Proposal 

2-2. Restoration of IIM Thrift Industry Losses 

2-3. Restoration of Overdraft Interest Clearing Accounts 

2-4. Miscellaneous OTF^ General Ledger Losses 

2-5. TIM and Tribal Account Holders Joint Settlement for 

Implementation of Special Trustee's Strategic Plan 
2-6. Settlement for Unreconciled Transactions 

2-6A. General Settlement Proceeds to D-Bank 
2-6B. Payable to Individual Tribes. Capped at $300m. 
2-7. General Settlement for IIM and Tribal Account Holders 
2-7 A. Equity Capital for Development Bank 
provided by Settlements 1-6A & 2-6A 
2-7B. Loans from U. S. Government 
2-7C. U. S. Guaranteed obligations of D-Bank 
of $5 billion, net of S3 billion loan 

Total Type 2 Claims Settlement 



Principal Interest 



Total 



11.6 


11.6 


23.2 


26.1 


116.9 


143.0 


37.7 


128.5 


166.2 


10.6 


14.5 


25.1 


17.5 


92.1 


109.6 




8.2 


8.2 




.5 


.5 



28.1 



(1) 
(1) 



m 



281 

42.2 
28-3 

147 

300 
300 



500 
3,000 

2.000 

6498.5 



115-5 



(1) 
(1) 



Ml 



13 



13 



143.4 



(1) 
(1) 

200 
200 

400 

281 
13 

42.2 
28-3 

147 

300 
300 



500 
3,000 

2.000 

6,6 1 IJ 



ToUl All Claims Settlements 



1. Forgiven Amounts 



2. A. 



B. 



Total Type 1 and Type 2 Claims Settlement Direct Obligations, net of S500 
million capital for D-Bank which was double counted. (See Settlements 
1-6A, 2-6A & 2-7A) & net of U. S. Loans & Guarantees of 55 billion 
Loans 53,000 and guarantees S2,000 from U.S. 



Total Claims Settlements including Forgiven Amounts 
(1) None unless tribes dispute account balance and bring successful negotiation/arbitration action. 



166.2 



1,654.9 
5.000.0 

6421.1 



Attachment C Part 4 to Boswell Declaration 



0631